How coral reefs stand to benefit from a law of ecocide
This guest blog is part of a series intended as a dedicated space for the many global movements/campaigns around the globe confronting ecosystem destruction to share their stories, narratives and perspectives.
This guest blog was written by Lyndon DeVantier, freelance coral ecologist.
It is now abundantly clear that the economic, political and legal status quo is failing to prevent the accelerating collapse of the world’s precious, biodiverse reefs. Repeated appeals to the rationality and goodwill of powerful actors, who have the ability to voluntarily prevent climate breakdown and the associated death of coral reefs, have gone unheeded. Ecocide law represents a new enforcement paradigm to deter reef destruction.
The state of the world’s reefs
Most of the heat caused by greenhouse gas emissions, in addition to 25 per cent of CO2, has been absorbed by the oceans and consequently sea temperatures are rising. This temperature rise fuels marine heatwaves, leading to the disease and death of reefs. Meanwhile, pollution poses an increasing threat to reef ecosystems, in particular from petrochemical-derived plastic. Plastic production is predicted to triple by 2060 and the companies responsible, predominantly fossil fuel corporations, have no intention of ‘turning off the tap’.
“The road to hell is paved with good conventions”
In recent decades, international goodwill and the hard work of climate negotiations have led to some landmark treaties with ambitious and admirable targets to reduce emissions and protect marine environments. Bert Rölling’s remark, though, that “the road to hell is paved with good conventions”, is pertinent in this context as stark evidence of states’ failure to adhere to environmental agreements continues to emerge.
Notably, for instance, the world did not meet a single element of the 2010 Aichi targets aimed at protecting biodiversity. Moreover, the world is ‘nowhere near’ the path to achieving the UN Sustainable Development Goals (SDGs), aimed at the alleviation of poverty alongside environmental protection, will be met. Among them is SDG 14, protection of the marine environment.
Legal frameworks and enforcement
At the heart of the failure to adhere to environmental targets is a lack of enforceability and the competing legal interests at play. The ratification in 2023 of the Biodiversity Beyond National Jurisdiction (BBNJ) multilateral treaty under the UN Convention on the Law of the Sea (UNCLOS) illustrates this point well. The BBNJ treaty represented a significantly novel framework in the protection of high seas ecosystems outside of national jurisdictions and has so far been ratified by 84 states. But area treaties such as the BBNJ are limited by other mechanisms within UNCLOS, including in the domain of shipping, fisheries, mining and territorial dispute resolution.
This clash of competing interests is evident in the case of the Spratly Archipelago in the South China Sea, home to numerous reef systems. The prospect of multilateral reef protection is hindered by China’s rejection of several countries’ territorial claims, a dispute that is significantly motivated by the profitability of marine resources there and other economic drivers of territorial claims.
The economic status quo
Underpinning the failure to realise climate objectives is our fixation on economic growth. Growth induces the overshoot of planetary boundaries such as consumption, waste and population, making it fundamentally incompatible with existing climate targets. However, thus far, there is little awareness of this fact among the global public and next to no acknowledgement of it in global policy discourse.
Meanwhile, environmentally damaging corporations have driven the poor enforcement of environmental regulations. A handful of particularly environmentally damaging corporations, most notably fossil fuel mega-corporations that are polluting the ocean, pursue the most aggressive lobbying in order to protect their profits, engaging in cover-up and deceit to prevent public knowledge of their environmental harms and stop initiatives that would regulate such incidents. The “pollution paradox”, George Monbiot explains, is that “the most damaging companies have the greatest incentive to invest money in politics… So politics, in our money-driven system, comes to be dominated by the most damaging companies”.
New legal paradigms
In recent years, the development towards Earth Jurisprudence, an ecocentric legal framework, has accelerated. In relation to reefs, a notable example of Earth Jurisprudence is the UN initiative ‘Towards a Universal Declaration of Ocean Rights’. Progress has also been made in enforcement through the advancement of 2100 environment-related domestic and international lawsuits across the world since 2017. The usefulness of domestic lawsuits in protecting reefs was illustrated by the case brought against the US National Marine Fisheries Service under the US Endangered Species Act for failing to finalise the protection of coral species.
Nevertheless, powerful actors remain largely unaccountable through civil law. Financial compensation for ecosystem harm is a problematic notion in itself, but it is also often factored into companies costs.
Moreover, the scale of damages may be wholly inadequate, while individuals who make environmentally destructive decisions are shielded by the corporate veil.
Ecocide
Many of the flaws in the legal system I have described have the potential to be remedied by a law of ecocide. By criminalising ecocide, both internationally and domestically, there would be a significant deterrent effect for state and corporate actors considering pursuing policies or actions that are environmentally harmful. Incidents of significant reef pollution could produce criminal convictions and financial penalties that are genuinely commensurate with the scale of ecological harm.
In practice, the proposed definition of ecocide as occurring over the ‘long-term’ and ‘over a reasonable period of time’ could support its applicability to reef destruction given that the regrowth of reefs takes decades and full recovery may even 'take centuries’. Moreover, categorisations of ecosystem vulnerability such as the IUCN’s Red List of Ecosystems could provide a framework for calculating sentences and reparations to vulnerable reef systems and their species. Significantly, fossil fuel actors contributing most to ocean heating could also be handed criminal sentences for engaging in climate delay and deceit.
Conclusion
The failure of ‘business as usual’ economics and the dominant international environmental protection mechanisms have taken us down the path of collapse of our treasured reef systems. A new legal mechanism, with criminal enforcement, is essential if we are to change the course of destruction. As many as 50 state signatories to the Rome Statute host coral reefs and bioherms. The scientific community must help bring pressure on those states to criminalise ecocide.
Scientists can join the growing global initiative to establish new standalone crimes of ecocide at the national, regional and international level here: https://www.stopecocide.earth/scientists.