Should We Criminalize Pollution Or Protect Natural Spaces?
By: Aurore Phipps
Tags: Ethics, Ecology And Environment, France, Ecocide, Environmental Issues

‘Irises’ by Van Gogh, oil on canvas, 1889

« Ecocide », environmental rights in France and ethical concerns

‘I am quite seriously proposing that we give legal rights to forests, oceans, rivers, and other so-called ‘natural objects’ in the environment — indeed to the natural environment as a whole.’

This is how the American lawyer and researcher Christopher Stone sets the framework for his approach in his essay published in 1972 “Should trees have standing?” He started from the idea, still legally inconceivable at the time, that elements of nature should be subject to the law on the same basis as men. Thirty-nine years later, Marie-Angèle Hermitte, doctor of law and researcher in legal and social sciences, in her article entitled ‘Nature, subject of law?’ Talks about common law as one of the tools for protecting nature and highlights efforts in environmental law to shift nature from object to subject of the law while citing Christopher Stone’s work on the question thus testifying to the capacity of environmental law to self-regenerate and adapt to new challenges.

In France, environmental rights made a remarkable entrance into the political and legal sphere with the creation, on January 27, 1971, of the Ministry for the Protection of Nature and the Environment, the first ministerial structure devoted to this matter (the experience will however be short-lived). The first real law dedicated to the protection of nature in France dates back to 1976. Its first article establishes a duty to protect public and private operators and general behavior towards nature and its elements in their interactions and interdependencies. While it does not yet recognize nature’s rights, the protection and preservation of nature are seen through the prism of ‘general interest’. The Environmental Code adopted in 2000 uses the wording of the Barnier law: ‘Spaces, resources and natural environments, sites and landscapes, air quality, animal and plant species, diversity and biological balances in which they participate are part of the common heritage of the nation’. Article L. 110–2 stipulates that laws and regulations organize everyone’s right to a healthy environment and that it ‘is the duty of everyone to ensure the preservation and to contribute to the protection of the environment. (…)’. In 2020, according to the Minister of Ecological Transition and the Minister of Justice, the notion of ‘the delict of ecocide’ is a novelty created to prevent and punish serious damage to the environment: ‘The enthusiasm of citizens who has spoken up, must be followed by a legal translation in the penal code’. This resolution, derived from the Citizen’s Climate Convention Proposal, would aim to punish the crime of pollution with fines (375,000 to 4.5 million euros) and/or prison sentences (3 to 10 years).

Many voiced critiques regarding these decisions. Indeed, they believe that the resolution itself is much less ambitious than the proposal from which it is drawn. Criticism is entirely admissible: when it comes to environmental protection, France has often lagged far behind. The idea that protecting the environment first and foremost through the punishment of human acts is a perfectly Western mistake. According to this punitive logic, we must cut off the hand of the enemy of nature, and who is this enemy? Mankind, obviously! Wouldn’t it be more pertinent to reverse the issue the other way around? Indeed, the study of the relationship between man and nature often focuses on the idea that human activity is inherently destructive and poses a perpetual threat. This causality equates the environment with pollution or disaster, causing the word itself to carry an implicit condemnation of human activity and guilt. It would then be a question of putting in place protective measures or even a defense against its human attackers. Yet in this vision, nature itself is not taken into account. Only the impact of humans on nature seems to be relevant. Thus, by analyzing the mechanisms that are part of the continuity of the idea of ​​the American jurist Christopher Stone, we see that it is nature that is placed at the center of the discussion. When the rivers of Ganges in India and Whanganui in New Zealand have been recognized by law as a living entity, we noticed an attempt at re-centering environmental issues on the environment itself. Protecting natural spaces means protecting individuals who integrate this space.

Legal personhood status granted to natural spaces finds its origins from the cosmological vision of nature created by indigenous peoples. We indeed need to get rid of a western-centered vision so we can get acquainted with a conception where mankind is not separated from nature but integrated with it. This is the idea that we find in the Ecuadorian Constitution of 2008 and in that of Bolivia of 2009 supplemented by the ‘law on the rights of Mother Earth’ of December 2010. Indeed, the fundamental texts of these two Andean countries go much further than most of the legal documents adopted around the world during the last forty years in terms of environmental protection: they enshrine the rights of nature — explicitly and emphatically — on the need for man to protect an environment which, if not healthy, could be in danger. Nature becomes a subject of law, holder of several fundamental rights, all against the backdrop of the constitutionalization of the ‘good life’.

In an ideal world, politicians and Western jurisdictions would deconstruct their “penalizing” relationship to pollution by rethinking the place man should occupy in natural spaces. They would also have to dismantle the polluting actions of companies that are part of an unethical system, by primarily protecting natural spaces instead of immediately punish the perpetrators. Unfortunately, we are on a downward spiral where the economic and financial interests of a failing system do not care about the lives of ecosystems and the people who occupy them. Until radical changes are made, we will only be able to witness symbolic acts and occasional slaps on the wrist.