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International arbitration report
In this edition, we focused on the Shanghai International Economic and Trade Arbitration Commission’s (SHIAC) new arbitration rules, which take effect January 1, 2024.
Belgium, the brand-new EU leader in the fight against ecocides
Global | Publication | mars 2024
On 22 February 2024, Belgium became the EU frontrunner in the fight against ecocides by being the first EU member state to criminalise ecocide, in the new Belgian Criminal Code. Belgium also became the first member state to recognise ecocide as an international crime, alongside war crimes, genocide, crimes against humanity, and crimes of aggression.
Content
Scope of the new Belgian crime of ecocide and related sanctions
The crime of ecocide, in Article 94 of the new Belgian Criminal Code, consists of “deliberately committing, by act or omission, an illegal act causing serious1, widespread2 and long-term3 damage to the environment4 in the knowledge that this act is causing such damage, provided that this act constitutes an infringement of federal legislation or an international instrument that is binding on the federal authority or if the act cannot be located in Belgium.” The crime of ecocide may be sanctioned, regardless of whether it is committed in time of peace or war.
The crime of ecocide may be punished by a sanction against any natural person entailing imprisonment for up to 20 years, and a fine of up to €1.6 million against legal persons.
In addition, the original proposal to Parliament proposed to modify the Belgian Criminal Procedural Code to allow the judge to order several ancillary measures against legal persons, namely: special confiscation, dissolution, a temporary or permanent ban on carrying out a certain activity within the scope of the company's objects, closure of one or more establishments, and publication or dissemination of the decision. However, it appears that this amendment has not been adopted yet by the Belgian Parliament.
In line with the current trend in international criminal law to recognise that businesses’ actions are ultimately carried out by individuals, directors and other executives of businesses legally responsible for ecocide will be personally liable for the conduct, and be imprisoned, as mentioned above.
All of this said, the current scope of the law is limited to areas that fall within federal jurisdiction, i.e., the North Sea and nuclear waste management. Therefore, the federal crime of ecocide can only occur if damage has been caused to the North Sea or is related to nuclear waste management. It remains to be seen whether the regional parliaments (Wallonia, Flanders and Brussels), which are responsible for environmental legislation in their respective regions, follow the example of the federal parliament and adopt decrees criminalising ecocide.
Ecocide elsewhere in the European Union
A. The New EU Directive
Five days after the adoption of the new Belgian Criminal Code, including the new crime of ecocide, the European Parliament adopted a new directive containing an extended list of environmental crimes which are comparable to ecocide,5 and related sanctions. Environmental crimes committed by individuals and company representatives may be punishable with imprisonment depending on how long-lasting, severe or reversible the damage is.
Qualified offences (i.e., where the conduct causes destruction or widespread and substantial irreversible or long-lasting damage to an ecosystem of considerable size or environmental value or a habitat within a protected site, or to the quality of air, soil or water) could be punished with prison terms of eight years, those causing the death of a person with ten years, and the other offences with up to five years.
In addition, natural persons who commit such crimes may be required to restore the environment (if the damage is reversible) or to compensate for the damage. They might also face fines proportionate to the gravity of the conduct, and other ancillary sanctions may be imposed, including disqualification from holding, within a legal person, a leading position of the same type used for committing the offence, temporary bans on running for public office, publication of all or part of the judicial decision, etc.
The new directive sets out a series of sanctions specific for legal persons. The fines that may be imposed on legal persons, may reach 3 or 5% of their yearly worldwide turnover or, alternatively, €24 or 40 million depending on the nature of the crime. Further penalties include: exclusion from public benefits or aid, exclusion from access to public funding, withdrawal of permits and authorisations, judicial winding-up, closure of establishments used for committing the offence, etc.
B. Other EU member states
Other member states are taking steps to criminalise ecocide. While in France, the crime of ecocide does not exist yet, article L. 231-3 of the French Code of Environment, introduced by the law of 22 August 2021 combating climate change and building resilience to its effects, introduced the offence (“délit”) of ecocide which provides for prison terms of up to 10 years and fines of up to €4.5 million.
In July 2023, the Catalan Parliament initiated a procedure to bring before the National Congress of Deputies, a bill to introduce the crime of ecocide in the Spanish Penal Code. Similarly, in July 2023, certain Members of the Dutch Parliament proposed a bill to criminalise ecocide in the Netherlands. Finally, in September 2023, a bill was proposed to the Italian Parliament to criminalise ecocide, defined as “severe and either widespread or long-term damage to nature”.
Footnotes
1
“Serious damage" is defined as “damage that results in highly detrimental adverse change, disruption or impairment of any component of the environment, including substantial impacts on human life or health, on biodiversity or on natural biodiversity or on natural, cultural or economic resources or economic resources for society.”
2
"Widespread damage" is defined as “damage that extends beyond a limited geographical area, that crosses regional or national boundaries or that is suffered by an entire ecosystem or species or a significant number of human beings.”
3
"Long-term damage" is defined as “damage that is irreversible or that cannot be repaired by natural regeneration within a reasonable period of time.”
4
"Environment" is defined as comprising “the earth, its ecosystems, biosphere, cryosphere, lithosphere, hydrosphere, its atmosphere, as well as outer space.”
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