Vanuatu’s Proposal to Make Ecocide a Crime Under International Law

By Chloe Johnson,
CGLJ Research Associate, Summer 2025
J.D. Candidate 2026, Northeastern University School of Law

Introduction

Vanuatu may be small, but it is mighty. Tucked away in the middle of the South Pacific Ocean with a population of about 320,000 scattered across 83 tiny islands, who would expect that a remote nation with such a small population could have such an important impact on the world stage? See UN in Fiji, Soloman Islands, Tonga, Tuvalu, and Vanuatu: Vanuatu (2025). Unfortunately, this nation has not had much of a choice. Confronted with rising sea levels, the loss of the home that has been theirs for generations, and the threat of population displacement, as is true of other Pacific island nations, Vanuatu and its residents are suffering first-hand the devastating effects of climate change that threaten their very survival. [E-Tangata]

As a result, Vanuatu has been a champion of promoting the protection of the environment through strengthening the enforcement of States’ legal obligations under international law. Vanuatu spearheaded the Request for an Advisory Opinion from the International Court of Justice (ICJ) on the Obligations of States in Respect to Climate Change.¹ The Court’s resulting opinion in July 2025 affirmed that States have a legal obligation to take concrete measures to prevent harm to the environment and protect human rights against the effects of climate change. [Center for International Environmental Law]. And in an effort to take these protections further, Vanuatu has partnered with the Maldives in submitting a request that States parties to the Rome Statute, the treaty that governs the workings of the International Criminal Court (ICC), amend the Statute to officially criminalize ecocide. [Earth.Org]

The Significance of the ICJ Advisory Opinion, the Rome Statute, and International Criminal Law

One of the benefits of the ICJ Advisory Opinion is that it affirms that there are actionable responsibilities States have in preventing environmental harms. While this is a huge development for international environmental law, one of the problems with the international law system generally is that it lacks enforcement mechanisms. Because there are no international law enforcement bodies to compel compliance with international treaties, States are left to police themselves and each other, largely through diplomacy and political pressure. See UN, Understanding International Law (2010). This has been one of the obstacles in getting States to comply with their obligations to mitigate the effects of climate change as signatories to international treaties such as the Kyoto Protocol and the Paris Climate Accords. These treaties create legal obligations on signatory States to mitigate the effects of climate change, but are not backed by strong international enforcement mechanisms to compel these States to comply with the standards set forth in the treaties. [E-Tangata]

Further, while the governments of States are legally bound by the international treaties they sign on to, businesses and corporations are not, as they are non-State actors. Businesses and corporations are bound by domestic laws, but only to the extent that States are willing to exert regulatory authority over their activities. This is where the benefits of international criminal law can be felt: international criminal law creates a way for the gravest crimes to be prosecuted at the individual level when the State where the crime was committed is unwilling or unable to prosecute the crime within its own domestic legal system. International Criminal Court, About the Court: How the Court Works (last visited Sept. 8, 2025). This includes the potential to hold, for example, CEOs of corporations individually responsible for grave environmental harms their company has caused.

When coupled with already existing international environmental treaties, the creation of new provisions in international criminal law that respond to serious environmental harms would allow for a two-pronged approach similar to that which exists for addressing genocide under international law: the Genocide Convention recognizes the crime of genocide and creates binding obligations upon States to prevent and punish it, holding governments responsible for acts of genocide, and the Rome Statute goes a step further by enabling the prosecution of individuals who commit genocide.²

The Rome Statute is the treaty that created the International Criminal Court (ICC),³ outlining the Court’s jurisdiction over the most severe international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC investigates and tries individuals charged with those crimes under international criminal law. Therefore, adding ecocide to the Rome Statute as a crime under international criminal law would complement the ICJ’s recent Advisory Opinion by enabling the prosecution of individuals who commit ecocide. By agreeing to add a new crime of ecocide to the Rome Statute, as Vanuatu has proposed, States who are parties to the Statute would also be agreeing to support and participate in an enforcement mechanism capable of prosecuting and punishing individuals who commit ecocide. This would bring States further into compliance with their obligations under environmental and climate treaties to take affirmative steps to deter further environmental degradation and preserve the livelihood of those most vulnerable to climate change, like the people of Vanuatu.

What is Ecocide?

The term “ecocide” was popularized in 1972 when Swedish Prime Minister Olof Palme condemned the use of Agent Orange in Vietnam, which demolished the local biodiversity, destroying more than 30% of Vietnam’s mangrove population and leaving water and soil in affected areas still contaminated today with dioxin. [USCRI]. The current legal definition of ecocide was coined in 2021 by an Independent Expert Panel for the Legal Definition of Ecocide, which was assembled by the Stop Ecocide Foundation and was comprised of 12 experts in criminal and environmental law. Ecocide is defined as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”

Vanuatu’s Push for Recognizing Ecocide: Why Include Ecocide in the Rome Statute?

In 2019, Polly Higgins, a Scottish lawyer and environmental activist, proposed calling for an amendment to the Rome Statute to include a new crime of ecocide. In her proposal, she argued that adding ecocide to the Rome Statute would create a legal duty for nations to prevent ecocide, legally binding them to take action before environmental destruction occurs, and imputing a legal duty of care on every nation to assist countries that are suffering from or at risk of ecosystem collapse due to the effects of climate change. Vanuatu and the Maldives then requested that parties to the Rome Statute agree to support such an amendment officially criminalizing ecocide. Some benefits of including the crime of ecocide in the Rome Statute include:

• Expanding international accountability for harms committed against the environment by increasing the possibility that individuals who commit such actions would be prosecuted on the world stage; See Rachel Killean, The Benefits, Challenges, and Limitations of Criminalizing Ecocide, The Global Observatory, Mar. 30, 2022.
• Deterring business owners from engaging in practices that could constitute the crime of ecocide; Id.
• Facilitating reparations for victims of ecocide through prosecutions; Id.
• Extending accountability beyond prosecution by the ICC through the application of universal jurisdiction, which in some countries allows for individuals to be prosecuted for grave international crimes in domestic courts, regardless of what country they are from or where the crime was perpetrated; Id. and
• Recognizing environmental destruction as one of the most serious crimes that can be committed would serve as an important symbolic pledge from the international community to take action on this issue. Id.

Critiques of the Formulation of the Definition of Ecocide

Although adding ecocide to the Rome Statute would be a huge advancement in the protection of environmental rights, critical legal theorists are skeptical of the formulation of the proposed crime as set forth by the Expert Panel. They are also concerned about whether criminalizing ecocide at the ICC will prove effective.

One concern pertains to the requirement that the perpetrator have knowledge that their actions will damage the environment. Critics are concerned that such a requirement will cause prosecutors to face significant challenges in proving liability and causation for harms to the environment, hindering the effectiveness and feasibility of prosecutions. [OpinioJuris] For instance, proving not only that a perpetrator intended to release toxic waste, but also that they were virtually certain of the environmental harms that would occur as a result, is quite challenging, making the typical knowledge standard infeasible for ecocide. [Völkerrechtsblog]

Additionally, critics are concerned that the criminalization of “wanton acts” inevitably brings about a subjective cost-benefit analysis, where prosecutors would be required to prove that the act of ecocide was “clearly excessive in relation to the social and economic benefits anticipated.” See Killean, The Benefits, Challenges, and Limitations of Criminalizing Ecocide.

Where Does Vanuatu’s Ecocide Initiative Stand Today?

While ecocide has not been added to the Rome Statute as of yet, significant progress has been made. On September 9, 2024, Vanuatu, along with Fiji and Samoa, formally re-introduced a proposal that the Assembly of States Parties to the Rome Statute recognize the independent crime of ecocide and add it to the Rome Statute. According to The Global Commons Survey 2024, 72% of people in the richest countries around the world, known as the G20, support laws which criminalize ecocide. While support for ecocide laws continues to grow, State parties must still garner a two-thirds majority vote before an amendment to the Rome Statute can be adopted.

¹ For more information, visit CGLJ’s Resource Hub page on the International Court of Justice.
² For a general overview, visit CGLJ’s Resource Hub page on the International Criminal Law.
³ For more information, visit CGLJ’s Resource Hub page on the International Criminal Court.