How to use Roman law to fight ecological warfare
Is the Roman notion of jurisdiction the last piece of the puzzle?
In the final installment of a miniseries that offers a historical perspective on present-day legal dilemmas, future Magic Circle intern Will Holmes examines legal theories that attempt to change the way humans interact with nature and suggests that the Roman the notion of competence could be the last piece of the puzzle.
The environment is currently at the epicenter of a legal war.
A new report from the Grantham Research Institute provides insight into the scale of the attack, with more than 1,000 cases reported in the past six years. Notable victories include Dutch decisions in Urgenda Foundation c. State of the Netherlands and Milieudefensie et al. vs. Royal Dutch Shell plc. which extend the duty to mitigate the effects of climate change to governments and private companies respectively. But many legal thinkers behind this movement know that the scale of the challenge is much greater.
There are two particularly promising ideas. The first is the creation of the new legal penal category “ecocide”. Originally theorized by Richard A. Falk in 1973, activists such as the late Polly Higgins, Philippe Sands QC and Dior Fall Sow lobbied for their definition of “ecocide” to become an international crime within the jurisdiction of the United Nations. International Penal Court.
The second is the granting of legal personality to environmental organisms and species, which gives them legally protectable rights. Popularized by Christophe D. Stone’s 1972 book Should the trees be upright?, recent examples of ecological features that have been granted legal personality include the Whanganui, Ganga and Yumuna rivers, Lake Erie, and Ecuadorian ecosystems.
But in times of war, a certain Roman inspiration is never a bad thing. I think the conception of Roman law jurisdiction is the missing piece of the puzzle that would complete these two ideas.
Today’s territorial jurisdiction would have seemed completely foreign to an ancient Roman. At the time, competence was guided by the principle of personality. This meant that regardless of location, if a Roman citizen was involved, then jurisdiction could be established.
This notion of jurisdiction, however, began to wane when the Antonine constitution of 212 CE blurred the tracks on who really was a Roman citizen. The constitution had (mainly for tax purposes) granted citizenship to all inhabitants of the empire. This now very broad notion of citizenship gradually ran into problems because it did not fit with the deeply rooted cultural conception of Romanity. Law could not precede culture.
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Ultimately, as Kaius Tuori argues, the constitution led many to turn to a more territorial approach that had existed under the guise of Roman private law. Here, the Roman concept of private property bound by geographic territory flourished in medieval times once property dissociated itself from sin. Territorial jurisdictions were formed around what one could own. This inadvertently contributed to the rise of two closely related phenomena that are at the heart of much of the environmental litigation that has taken place in recent years: the corporate and the nation-state.
On the one hand, states have increasingly developed centralized control over natural resources in the name of the “common good” – a goal of questionable clarity. For example, acting “ad commune beneficium”, the timber-hungry Venetian state extended its bureaucracy to forests, while Emperor Maximilian even established the role of imperial emperor. Fischmeister, responsible for regulating Austrian fishing.
On the other hand, certain groups became the first localized companies which sought, under state regulation, to take advantage of the natural resources of their territory. There is evidence that charters were granted to 13th century mining companies in modern times in Austria, Germany and Sweden, with the Swedish mining company Stora Kopparberg, incorporated in 1288, still existing today as of paper company Stora Enso. Although initially limited in their capabilities, limited liability and new technologies have allowed these two forces of legal possession to become a serious threat to certain natural resources.
Whatever the environmental consequences of abandoning the Roman personality approach to jurisdiction, the revival of personality theory has much to offer the proposals of Falk and Stone. The key issue surrounding the “ecocide” proposal is the effectiveness of the International Criminal Court (ICC). Uncooperative nations, allegations of illegitimacy and lack of enforcement powers have weighed on the ICC since its inception in 2002 (see this book on the ICC indictment against President Omar Al Bashir for more details).
To fill this gap in international law and human rights, the courts are authoritative jurisdictions. The United States, however, has significantly reduced its interpretation of the 1789 Alien Tort Statute in recent times, with the most recent ruling from June confirming this trend. The application of corporate criminal liability for extraterritorial activities is very uncertain. the Trafigura case is a good example. Charges have been brought in several countries against an oil company for the effects resulting from its disposal of toxic waste in Côte d’Ivoire. The public prosecutor decided not to proceed with the case, whereas in Motto & Ors v. Trafigura, the English High Court declared itself competent to hear complaints.
If a flexible approach were taken in granting legal personality to the environment, then the Roman law concept of personality-centered jurisdiction for such matters would remove these jurisdictional obstacles. Not all environmental entities with legal personality can be denied justice because of their jurisdiction. Ultimately, the property-centered view of jurisdiction, when applied to the environment, has historically left nature vulnerable and favored exploitative entities. Surely the law can no longer ignore his voice?
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