INTRODUCTION Excluding a pocket of recent scholarship

Excluding a pocket of recent scholarship investigating the international community’s

legal and ethical obligations to assist the subset of victims known as ‘climate refugees’

(Ferracioli 2014, Eckersley 2015, Gendreau 2017, and Herington 2017), academics have roundly

ignored the general question of: “What ought to be afforded victims of environmental harm?”

The theoretical neglect is so pronounced and pervasive that even prior to broaching normative

questions (e.g., “What do these victims deserve?” and “Who ought to be responsible for assisting

the victims?”), the basic ontological questions (e.g., “What are environmental harms?” and

“Who are environmental victims?”) have received scarce analysis. Hence, my dissertation’s core

aspiration is to stimulate this vital discussion by cohesively delving into the above questions

through the domain of political philosophy, in the hope of developing a framework for

determining normatively appropriate responses to severe environmental harms, i.e., offer a

theory of environmental transformative justice for post-ecocide states.

The goal is to provide post-ecocide communities insight and guidance on how to best

remodel, alter, and remove (pre)existing conditions responsible for generating wrongs, while

correcting the harms victims suffered. Thus, the focus is on transforming communities’

relationships and interactions with their environment, instead of simply repairing the damage

from past injuries. A justification for embracing a transformative approach lies in the fact that

unless structures and practices are altered, the possibility of repeating wrongs in the future

remains. Nevertheless, one may ask: “Why must we wait until after the harms have occurred to

begin the process of social transformation?”

Waiting is indeed unnecessary, as, ideally, we ought to take preemptive and preventative

action to ensure environmental harms do not occur in the first place. Ultimately, however, a

quick glance at the litany of disasters, tragedies, and injustices of history ought to make one

weary of our proactive ability to avoid wrongs. Furthermore, the work contends that our

collective reactive attitudes to grave harms play a central role in furnishing the impetus to spur

social change, i.e., without experiencing the negative consequences, there is less motivation to

take action to alter patterns of behavior. Accordingly, the dissertation suggests that pursuing

environmental transformative justice offers an opening for (re)examining and

(re)conceptualizing our practices, habits, values, norms, and priorities toward nature; in that

reparative and reconciliatory activities represent an opportunity for progressively departing from

current destructive and exploitative treatments of nature, thereby achieving and promoting

sustainable stewardship.

The work thus proposes that focusing on the need for environmental transformative

justice in actual post-ecocide communities provides provocation and direction for awakening

awareness and understanding of the impact of humans on the environment and the impact of the

environment on humans – recognizing the complex, dynamic, imbedded, and

mutuallyconstructing relation of man-to-nature and nature-to-man (Moore 2015). Exploring

normatively appropriate responses to ecocide in relation to currently existing states-of-affair

(through the use of real-world examples) has the added benefit of linking the project to insights

from various established fields, e.g., green criminology, environmental psychology, ecotheology,

environmental justice, etc. Centrally, the project aims to show how certain acts of environmental

destruction trigger comparable normative concerns to those dealt with in the discipline of

Transitional Justice.

The first chapter will explain why environmental transformative justice ought to be

situated within the Transitional Justice framework. It will demonstrate how ecocide is a harm

demanding reparation (past-oriented redress of past wrongs, thereby obtaining justice for

victims) and reconciliation (future-oriented restoration of civic trust and social solidarity). To

achieve this aim, the chapter will proceed in five distinct sections: (1) delineate the range of

environmental harms under consideration as ecocide; (2) provide paradigm (real-world) case

studies that fit the criterion of ecocide; (3) analyze the case studies and offer an idealized

descriptive model of the harm; (4) demonstrate that the resulting harm fits within traditional

theories of ‘oppression,’ thus justifying the need for redress, and (5) link the causes of harm to

comparable activities receiving Transitional Justice’s attention. Hopefully, the cumulative and

combined success of each step sufficiently strengthens, supports, and convinces the reader of the

thesis that Transitional Justice’s reparative and reconciliatory measures ought to apply in such

situations of environmental destruction.

The first chapter focuses on Transitional Justice’s ability to provide a platform for

conceptualizing and achieving environmental transformative justice in post-ecocide states. In this

light, it is illustrative to offer cases of ecocide that are, at present, not traditionally considered

matters of Transitional Justice, while concurrently exhibiting that they ought to be. The case

studies analyzed will focus on the “cultural death” of affected communities, e.g., mountaintop

removal mining’s impact on the Wayúu of Colombia, damming’s impact on Cree tribes in

Quebec, and nuclear testing’s impact on the Anangu in Australia.

In summary, the argument of the first chapter revolves around the premise that

oppression claims are themselves prima facie moral claims for remedy or redress. Thus, from a

normative perspective, once a practice has been established as oppressive, the moral case for

opposing, resisting, and correcting the wrongs has already been made. Consequently, the chapter

will show that cases of ecocide satisfying our criteria are oppressive, then it follows that they

require reparative and reconciliatory redress. Since the oppression results from similar practices

(e.g., negligent state activity) and causes comparable harm (e.g., social death and loss of vital

interests) to those within the normal purview of Transitional Justice, then it follows that our

paradigm cases and idealized description of ecocide represent suitable candidates for garnering

Transitional Justice’s attention, i.e., that the field ought to expand to cover the harm of ecocide

(in these and similar cases), beyond any instrumental role the environmental destruction may

play in advancing genocide, ethnic cleansing, mass murder, etc.

After the first chapter establishes the argument for the expansion of the Transitional

Justice framework to cover cases of ecocide that were committed intentionally (with the aim of

benefiting the acting group) and resulted in the loss of vital interests (causing partial or complete

social death) of non-consenting cultural groups, the second chapter will then focus on developing

an expansive theoretical account of responsibility that can be applied to our paradigm cases of

ecocide.

The objective of the second chapter is to develop an effective means of delineating and

apportioning actors’ obligations (i.e., the necessary aims, measures, and mechanisms) toward

achieving environmental transformative justice. The conception of responsibility under

consideration must therefore be persuasive, politically useful, reasonably acceptable to the

parties involved, and serve to counter misleading and obscuring narratives that disguise

accountability (both over-inclusively and under-inclusively) for ecocide.

To achieve these aims, the chapter will proceed in two sections: (1) summarize the

conception of responsibility traditionally employed in both Transitional Justice and

environmentalism, so as to discern a common understanding of responsibility that satisfies both

fields; and (2) offer hypothetical instances of ecocide that fulfills all our criteria (i.e., from the

first chapter) as a means of testing a proposed theory of responsibility designed to delineate

classes of actors answerable (morally, legally, politically) to the call for repairing and reconciling

the harm that broadly meets the goals of both fields.

Essentially, the chapter aims to demonstrate that both Transitional Justice and

environmentalism have settled on a theoretical understanding of responsibility that has three

central components. First, the requisite notion of responsibility must be both backward

(retrospective) and forward (prospective) looking – backward looking in that it is able to hold

actors accountable for deeds which are broadly construed to include both action and inaction;

forward looking in that it is able to discern actors’ obligations toward particular objects,

relations, and ends (e.g., a referee’s responsibility is to call a fair game). Secondly, the notion of

responsibility must be socially capacious, in that the categories and kinds of social entities

included as potential bearers of responsibility is expansive (including individuals, groups,

collectives, corporations, agencies, communities, institutions, states, interstate organizations, and

global networks). Finally, both disciplines benefit from utilizing a conception of responsibility

that is able to hold actors jointly, commonly, and collectively answerable and responsive; while

concurrently maintaining mechanisms for distinguishing and differentiating degrees, levels, and

kinds of culpabilities, accountabilities, duties, and obligations between them.

Ultimately, the chapter will argue that Iris Marion Young’s two-tiered analysis of

responsibility (i.e., the liability model and social connection model) provides valuable insights

for achieving the above objectives. The second half of the chapter will apply her understanding

of responsibility to both hypothetical and real cases of ecocide, which meet our four criteria from

the preceding chapter.

The third and fourth chapters will analyze the question of what is required of those

responsible for repairing and reconciling the injustice of ecocide. In other words, the second half

of the dissertation will work toward demonstrating the injustice of ecocide and developing a

conception of environmental transformative justice for post-ecocide states.

The dissertation recognizes that an effective response to ecocide necessarily depends on

the pre-existing values and goals of the affected community. Nevertheless, the community’s

actions and decisions involved in the transformative component of reconciliation and reparation

will influence, constrain, habituate, and structure its values and opportunities moving forward.

Additionally, an adequate response must be iterative and flexible, since any policy decision will

influence other issues and generate unintended consequences in the treatment of the original

problem, i.e., there is constant and continuous feedback between problem/solution and

values/objectives.

Accordingly, the project is amenable to environmental transformative justice measures,

which oscillate between working within the currently dominant neoliberal political paradigm

(i.e., embracing free markets, private property, mass production and consumption, globalization,

atomism, economic growth, or the sovereignty of the nation-state) and those that seek to escape

it (i.e., embracing controlled economy, public goods, subsistence production and consumption,

localization, communitarianism, steady-state economy, or bioregionalism). As such, the work

prioritizes pragmatism over idealism, process over substantive conclusions, and coping with

reality over attempting to copy some immutable Truth, thereby recognizing that there may be no

one-size-fits-all solution to overcoming ecocide.

The work contends there are two distinct approaches to articulating conceptions of justice

in political philosophy: (1) a ‘constructivist’ approach which attempts to delineate ideal

distributive principles and institutional structures that, if enacted with strict compliance in

favorable conditions, would generate a just state – e.g., John Rawls; (2) a ‘comparativist’

approach interested in examining the actual world and asking how it can be made more just, by

observing what lives are like and imagining what people are capable of achieving through

comparing persons and groups – e.g., Amartya Sen and Martha Nussbaum. The third and fourth

chapters will respectively analyze both approaches’ insights for achieving environmental

transformative justice; comparing their respective strengths and weaknesses as a

means of assisting affected communities in their post-ecocide decision-making.

The third chapter will analyze the ways in which Rawls’s theory of “justice as fairness”

can diagnose the injustice of ecocide. The analysis aims to establish a minimum threshold of

ecological sustainability that “well-ordered” societies must attain. A benefit of employing

Rawlsian theory is its emphasis on the importance of respecting a social pluralism of values and

promoting fraternity between citizens. This makes it well suited to the project of incorporating

the interests of relatively self-sufficient communities (i.e. autarkic communities) into a broader

society. “Justice as fairness,” as it will be presented in the chapter, requires that at least a limited

set of natural resources be protected, in so far as they are essential for enabling certain citizens to

pursue their own conceptions of a good life, develop their moral powers, and become

cooperating members of society.

A problem with relying on a traditional Rawlsian approach is that it only offers guidance

regarding how societies ought to ideally structure themselves moving forward (i.e., it requires

that states respect citizens basic rights, foster a system that engenders fair and equal life

prospects, maximally assist the downtrodden, and ensures that future generations can meet their

needs). Such a limited conception of justice is inadequate in that it fails to sate strong intuitions,

felt by both Transitional Justice and environmentalism, that past wrongs require specifically

tailored forms of redress. Accordingly, the conclusion of the third chapter will argue that

environmental transformative justice demands moving beyond a strictly future-oriented

conception of justice.

The final section of the third chapter will explore recent scholarship by Vaca, Espindola,

and Mills which convincingly argues that Rawls’s ideal constructivist theory requires an

additional principle of reparative justice (Vaca and Espindolda 2014) (Mills 2017). However,

even after establishing the need for reparative redress, the constructivist approach to justice

offers little guidance regarding how to combat the injustices of ecocide in the actual world.

Thus, to overcome these real-world application problems (i.e., that knowing the ideal

does not inform how to proceed in overcoming existing injustice), the fourth chapter will

proceed in analyzing comparative approaches to justice (e.g., Sen and Nussbaum), which rely on

robust methods of social evaluation based on examining the actual world and asking how it can

be made more just, by observing what lives are like and what people are capable of achieving

through making comparisons between persons and groups. The hope is that such an empirically

grounded and welfare-oriented approach is better suited to providing more tangible guidelines

for implementing responses to ecocide than constructivists’ transcendental goal of determining

the basic structure of an ideally just society.

Lastly, after relying on the comparative approach’s methodology to articulate social

concerns in post-ecocide societies, the dissertation will attempt to demonstrate ways in which

Transitional Justice mechanisms can assist post-ecocide states in coming to terms with the

injustice of ecocide, i.e., enact environmental transformative justice. To achieve this, the

concluding section of the dissertation will evaluate the particular challenges and opportunities

presented by employing Transitional Justice’s sophisticated toolkit of mechanisms and

procedures (e.g., criminal tribunals, truth commissions, public apologies, pardons, lustration,

memorialization, constitutional conventions, reparations, etc.) for repairing past wrongs,

achieving forgiveness, and transforming society in order to prevent future wrongs. The central

focus of the final section involves specifying the ways in which Transitional Justice mechanisms

can further environmentalist ends (including habitat preservation, environmental restoration, and

ecological sustainability) when implemented in service of justly responding to our cases of

ecocide.

In conclusion, much scientific and activist work has focused on a myriad of

environmental concerns (involving abatement, mitigation, and adaptation). However, a sustained

political philosophical analysis of environmental harms attending to reparative and reconciliatory

practices has not yet been attempted. This task I here take up aims at providing practical

suggestions for assisting those affected by environmental disaster, as well as offering and

philosophically justifying a blueprint for the transformation of society from an ecocidal state to

an ‘eco-friendly state.’

CHAPTER ONE

What is Ecocide? Situating Ecocide as an Oppression within Transitional Justice

I. Delineating Cases of Ecocide Under Consideration

The aim of the current project is to develop and analyze a framework for determining

normatively appropriate responses to ecocide, i.e., to offer a theory of environmental

transformative justice for post-ecocide societies. The hope is to provide post-ecocide

communities insight and guidance on how to best remodel, alter, and remove (pre)existing

conditions responsible for generating wrong(s); while correcting the harm(s) victims suffered.

The objective of the current chapter is to explain why environmental transformative justice ought

to be situated within the Transitional Justice framework, i.e., demonstrate that

ecocide is a harm demanding reparation (past-oriented redress of past wrongs, thereby obtaining

justice for victims) and reconciliation (future-oriented restoration of civic trust and social

solidarity, i.e., seeking justice for social rehabilitation and progress). To achieve this aim the

chapter will proceed in five distinct sections: (1) delineate the range of environmental harms

under consideration as ecocide; (2) provide paradigm (real-world) case studies that fit the

criterion of ecocide; (3) analyze the case studies and offer an idealized descriptive model of the

harm; (4) demonstrate that the resulting harm fits within traditional theories of oppression, thus

justifying claims for moral consideration and remedy, and (5) link the causes of harm to

comparable activities receiving Transitional Justice’s attention, thus validating the need for

reparative and reconciliatory redress. Hopefully, the cumulative and combined success of each

step sufficiently strengthens, supports, and convinces the reader of the thesis that Transitional

principles of justice) to gradually make them less unjust, while still remaining ill-ordered

societies (Mills 2015: 66). As Alexandra Barahona de Brito and Laurence Whitehead explain the

discipline of Transitional Justice is made up of six main camps or approaches: “First, there is the

work of human rights organizations. This can range from ‘moral denunciation’ to sober and

sophisticated reports on progress (or lack thereof) with transitional justice measures, analyses of

legal issues, reports on the violations themselves, and policy-oriented documents recommending

appropriate action. Second, there is an immense legal-political literature, which focuses on legal

issues and on the national and international laws that are relevant to transitional justice…Third,

there is the literature dealing with victim trauma and recovery…The fourth strand, which was

developed more fully with the rise of postmodern cultural studies, goes well beyond the scope of

transitional justice and focuses on ‘the politics of memory’. The approach is more sociological

and cultural, and it includes analyses of ‘how societies remember’ their collective past, how past

events are memorialized (the study of memory sites), and how narratives about the past are

constructed, including analyses of how ‘history is written’. This partly overlaps with the fifth

strand, the work of ‘classic’ historians, mostly on the Holocaust and other, more historically

distant, collective traumas. Finally, there is the comparative politics/political science literature,

both conceptual and empirical” (Barahona de Brito and Whitehead 2012: 440).

Justice’s reparative and reconciliatory measures ought to apply in such situations of

environmental destruction.

Essentially, the chapter focuses on Transitional Justice’s ability to provide a platform for

conceptualizing and achieving environmental transformative justice in post-ecocide states. In this

light, it is illustrative to offer cases of ecocide that are at present not traditionally considered

matters of Transitional Justice, while concurrently exhibiting that they ought to be. The strategy

for achieving this objective will be to explore the concept of ecocide broadly in the hopes of

discerning a reasonable set of cases amenable to reparation and reconciliation.

A. Prescriptive vs. Descriptive Accounts of Ecocide

Etymologically, ‘ecocide’ derives from the Greek “oikos” for home and Latin “caedere”

for kill. In the broadest sense, ecocide is the destruction (death) of an ecosystem (place where

organisms live). But the problem with such an expansive definition is that ecosystems can range

in scale from the colonies of microbes living on my fingertip (or smaller) to the entire Pacific

Ocean (or larger). Consequently, such a conceptualization is far too expansive to carry normative

weight, i.e., it implies that every time I wash my hands, eat, or brush my teeth I am committing

ecocide. Thus, to avoid reductio ad absurdum conclusions, e.g., that hand washing necessitates

environmental transformative justice - it is important to distinguish two conceptions of ecocide:

(1) scientifically descriptive and (2) ethically prescriptive.

A scientifically descriptive account of ecocide includes any and all destruction of

ecosystems (including the act of washing my hands and annihilating the microbial habitat).

Whereas, an ethically prescriptive account of ecocide includes only cases of ecosystem

destruction that are wrong; I assume it seems obvious that the act of washing hands and

damaging microbial habitats is not in-and-of-itself morally problematic, i.e., it falls outside the

scope of our normative concern. Hopefully, the distinction illustrates to the reader that not all

scientifically descriptive instances of ecocide are candidates for reparation and reconciliation.

Hence, for our purposes (i.e., situating ecocide within the Transitional Justice framework) the

concept under consideration is necessarily of the ethically prescriptive variety. As a result,

delineating which cases of ecocide qualify is the central topic of exploration.

B. Ecocide as Genocide

Transitional Justice is an area of practice concerned with states moving from failed

sociopolitical system(s) that engaged in and/or permitted grave social harms (e.g., genocide,

ethnic cleansing, mass murder, etc.); and instead, moving towards societies that respect the rule

of law; afford fair and equal treatment to all its citizens; engender civic connectedness, and strive

to establish reciprocal trust both institutionally and individually. Thus, the most straightforward

approach of situating ecocide within the Transitional Justice framework is to proffer cases of

environmental destruction perpetrated as a means of achieving horrific wrongs (e.g., genocide,

ethnic cleansing, mass murder, etc.) that are already accepted at the heart of the discipline.

Sadly, history is replete with cases of actors intentionally harming the environment to kill the

ecosystem’s inhabitants and destroy their way of life. In fact, at the dawn of recorded history

there are documented examples of intentional ecocide perpetrated during warfare, e.g.,

Herodotus describes the retreating Scythian army scorching the earth, destroying food supplies,

and poisoning wells to prevent the advance of the Persians.

Scorched earth retreats and similar tactics of “defensive ecocide” have been responsible

for countless environmental tragedies, maybe the worst of which occurred in 1938 when the

Chinese attempted to stop the invading Japanese army by destroying the Huayuankou dike of the

Yellow River. Ultimately, the decision to dynamite the dike resulted in flooding millions of acres

of land over three provinces; destroying eleven cities and 4,000 villages; leaving millions

destitute and homeless, and killing hundreds of thousands Chinese citizens (Muscolino 2015).

Nevertheless, the motivation and intention behind these hyper-destructive defensive maneuvers

was survival and protection - not the total annihilation of the enemy and their way of life; as

such, they are unconvincing examples of “ecocide as genocide”.

“Ecocide as genocide” requires cases of environmental destruction deployed as a tactic

intended to exterminate peoples and end their way of life. A paradigm illustration of ecocide as a

strategy of eradication is the apocryphal tale of the Roman legions in the Third Punic War

leveling Carthage and sowing the land with salt to prevent anything from ever growing there

again. Tragically, not all cases of “ecocide as genocide” are legends; a vivid and contemporary

example is Saddam Hussein’s extermination of the Ma’dan (Marsh Arabs).

The Ma’dan inhabited a region of marshes slightly upriver from the intersection of the

Tigris and Euphrates (the largest wetlands in Southwest Asia) since “time immemorial” - it is

estimated that they have lived in the region for over 5,000 years (Dellapena 2007). Over the

millennia, the Ma’dan had developed into a distinct cultural community highly dependent on the

marshes for their traditional way of life and continued survival.

After the defeat of the Iraqi army in the Gulf War and spurred on by President Bush’s call

to the Iraqi people to overthrow the Hussein Regime, the Ma’dan and other Shiite Arabs in

southern Iraq rebelled (Dellapena 2007: 402-403). Hussein responded with overwhelming

airpower, artillery fire, well poisoning, and electrocuting the marshes to end the rebellion and

force the Ma’dan to abandon their ancestral home or face near certain death (Dellapena 2007:

403). Moreover, Hussein succeeded this initial onslaught with a comprehensive project to

destroy the habitat and prevent the Ma’dan from ever returning home. “Within months of the end

of the revolt, the Iraqi government undertook to drain the marshes, dredging canals, constructing

dams, and leaving about 90% of the wetlands desiccated” (Dellapena 2007: 403).

Draining the marshes represents a clear example of “ecocide as genocide” as it was a

deliberate plan to destroy the environment as a means of ending the Ma’dan and their way of

life. “It became impossible for the Marsh Arabs to survive where they were. After 1993, only a

few thousand of the perhaps 500,000 Marsh Arabs remained” (Dellapena 2007: 403).

Consequently, conceptualizing the violence committed against the Ma’dan falls squarely

within the Transitional Justice framework, i.e., it is a case of genocide, ethnic cleansing, and

mass murder. As such, in this and other cases of “ecocide as genocide” there already exist

welldeveloped methods and mechanisms (e.g., criminal tribunals, truth commissions, public

apologies, pardons, lustration, memorialization, reparations, etc.) for conceptualizing and

responding to these sorts of wrongs.

Nevertheless, for our purposes the drawback of focusing on cases of “ecocide as

genocide” is that it may obscure environmental component(s) of the harm. The worry is that if

the analysis is limited to instances where ecocide is merely a vehicle for achieving wrongs

already covered by Transitional Justice, then the focus will remain moored to traditional

(nonenvironmental) crimes against humanity. Instead, the work is proposing that Transitional

Justice ought to expand to cover the harm of ecocide; beyond any instrumental role the

environmental destruction may play in advancing genocide, ethnic cleansing, mass murder, etc.

C. Green Criminology and Expansion of Social Harms

Fundamentally, the current section of the chapter strives to prove that ecocide ought to be

included as a concern of Transitional Justice regardless of whether or not the environmental

destruction was committed in an attempt to cause traditional crime(s) against humanity. In other

words, the wrongness of ecocide is not limited to cases in which the environmental destruction

was committed with genocidal intent. The justification for expanding the scope of wrongs

covered by Transitional Justice stems from a troubling insight advanced in the field of green

criminology - “that much actual harm is perceived to be legitimate and lawful” (White 2014: 1).

Green criminology is a school of criminal justice that arose at the turn of the 21st century.

The disciplines’ core tenant is that environmentally damaging activities are responsible for

causing extensive social harm in contemporary societies; but yet, are generally legal and

applauded. Rob White provides a vivid example explaining how felling old-growth forests (i.e.,

an activity that can generate irreversible ecological harm, biological diversity loss, and

widespread disruption to the local community) remains legal in many areas of the world,

whereas the benign activity of cultivating naturally growing hemp is often criminalized (White

2014: 4).

Thus, green criminology argues that if social welfare is to be expanded, then there must

be increased social understanding, codification, and prosecution of environmental harms as

illegal and wrong (White 2014, Natali 2016, South 2017, and Lynch et al 2017). “A key issue is

the weighing up of different kinds of harm and violation of rights, that involves stretching the

boundaries of conventional criminology to include other kinds [environmental] of harm than

those already deemed to be illegal” (White 2014: 6).

When applied to Transitional Justice, green criminology asks us to consider the

possibility that the discipline as currently practiced may be blind to a full range of incidents

responsible for causing widespread social harm (of the type the discipline is traditionally

concerned with) over and above the class of cases currently under consideration. If this is the

case, then Transitional Justice ought to expand its scope to cover broader cases of ecocide to

promote social welfare.

In short, does Transitional Justice promote greater social justice by maintaining the

current model of limiting the analysis of environmental harms to cases of ecocide as a means of

of numerous Nigerian judicial proceedings provides a vivid example, demonstrating ways in

which Nigerian judges’ consistently favor plaintiffs and defendants from the oil industry. As

Ebeku states, “if oil remains an important revenue earner for the country, it is doubtful if the

courts will abandon and economic approach and move towards a more sustainable approach –

protecting individuals, groups, and the environment itself against environmental damage arising

from oil-development” (Ebeku 2003: 207). Hence, the goal of green criminology in this case and

in others is to describe and alter socio-legal attitudes, norms, and practices regarding

environmental harms. “Green criminologists generally agree that destructive and damaging

human activities that harm environments warrant greater attention than has hitherto been the case

within criminology” (White 2014: 1).

committing traditional crimes against humanity or by expanding the class of harms under

consideration to include ecocide more generally? To begin answering this question, we must

briefly comment on the concept of ‘genocide’ as presently accepted within the field of

Transitional Justice.

D. Social Death as Genocide

Etymologically, ‘genocide’ derives from the Greek “genos” for race, tribe, or clan and

Latin “caedere” for kill. Thus, genocide in the broadest sense is the destruction (death) of a

people (race, ethnicity, or culture). But etymology fails to capture the prevailing understanding

that genocide must be intentionally perpetrated – “there can be no ‘accidental’ genocides” (Lang

2010: 87).23 International law in theory, codification, and practice embraces the perspective that

genocide requires mens rea (intention), e.g., Article 2 of the UN Convention on Genocide states:

“Genocide means any of the following acts committed with intent to destroy, in whole or in part,

a national, ethnical, racial or religious group as such” (emphasis added)(1948). But one

might question what distinguishes genocide from intentional mass death or are all intentionally

committed mass deaths genocide? In answering this question, Claudia Card compellingly argues

that the distinct harm committed in genocide (and not in other cases of intentional mass death) is

severing the groups’ vital social interests (e.g., cultural identity, interand-intra-generational

connectedness, social relations, etc.). “In my view, the special evil of genocide lies in its

infliction of not just physical death (when it does that) but social death, producing a consequent

meaninglessness of one’s life and even of its termination” (Card 2003:

73).

According to Card for an act to be considered genocidal requires the intentional infliction

of social death (i.e., being stripped of controlling vital interests) upon a group because they are

members of that group. Importantly, embracing such a definition implies that an act can be

considered genocidal even if no group member(s) are physically killed, so long as social death is

intended.

But a worry is that if Transitional Justice remains concerned only with cases of

intentional genocide, then the vast majority of instances of social death will be excluded from

reparatory and reconciliatory consideration. The gravity of this concern becomes pronounced

when we consider the fact that humanity is in the midst of the greatest acceleration of cultural

disappearance in history (UN 2012). Countless cultures have lost or are in the process of losing

their cultural identity, traditional means of survival, social relations, autonomy, and connection to

their past. Yet overwhelmingly, most of these cases of social death (via cultural disappearance)

would not constitute genocide because they are unintentional.

Upon taking a birds-eye view of the modern world, it seems uncontroversial that the

primary driver of cultural disappearance is not intentional genocide; but instead, a steady process

of economic growth, social development, globalization, cultural integration, etc. If this is the

case, then the green criminologists’ critique appears credible in that currently legal activities are

responsible for causing social harm at an accelerated rate over and above wrongs recognized,

codified, and prosecuted as illegal in existing domestic and international law.

Accordingly, if we believe that communities suffering from unintentional social death

deserve reparatory and reconciliatory consideration, then it is necessary to expand the notion of

wrongs covered by Transitional Justice. Essentially, what the work aims to prove is that one of

the key drivers behind the accelerating rate of social death is deliberate environmental

destruction; while emphasizing that these environmentally destructive acts are generally not

committed in an attempt to exterminate people(s) or culture(s). It is this realization that drives

the work’s assessment that to promote greater social welfare Transitional Justice ought to

embrace an account of ecocide as a wrong if it causes the same effect as genocide (i.e., social

death) overand-above any instrumental role the environmental destruction may have in

intentionally causing traditional crimes against humanity.

It is necessary to reemphasize that this does not mean that every instance of ecocide (i.e.,

descriptive account(s) that include such activities as washing hands and brushing teeth)

constitutes a wrong in-and-of-itself that ought to be afforded consideration from within the

Transitional Justice framework - such a farfetched claim would require a vastly different and

more challenging argument. Instead, what the work proposes is a prescriptive account of ecocide,

which delineates a class of harms limited to instances of intentional environmental destruction

responsible for unintentional cultural loss that ought to be included within the purview of

Transitional Justice.

II. Examples of Ecocide as Driver of Unintentional Cultural Loss and Social Death

This section will analyze real-world instances of environmental destruction in the hopes

of demonstrating the reach and applicability of situating the wrong of ecocide within the

Transitional Justice framework. To achieve this the work intends to explore cases that foster a

clear intuition that group(s) affected by environmental degradation have suffered grave wrong

(not currently covered by Transitional Justice) that ought to be afforded reparative and

reconciliatory consideration. In an attempt to provide broad and compelling analysis the

examples will be varied geographically (i.e., drawn from around the world), in victim type, and

in the kind of activity considered.

In summary, for our purposes the paradigm cases of ecocide (i.e., those that meet the

above standard) must satisfy four elements: (1) committed intentionally for supposed benefit of

acting group; (2) without consent of impacted group; (3) non-instrumental in the commission

of a traditional crime against humanity, and (4) undermined the vital interests of a distinct

cultural group, i.e., caused partial or complete social death of impacted group. The justification

for limiting our analysis to the above four criteria is that combined they represent minimally

necessary elements required for situating and applying the wrong(s) of the case studies (despite

the fact that they are currently excluded from the purview of Transitional Justice) to canonical

theories of oppression - which will be a topic covered in subsequent sections of the chapter.

A. Dams

The construction of dams has the potential to produce extensive ecological devastation. It

is important to emphasize that dam-caused ecocide can occur when the edifice functions exactly

as intended absent any structural failure; moreover, it is precisely these cases that are ideally

suited (i.e., satisfy the above four elements) for consideration in our attempt to situate ecocide

within the Transitional Justice framework. (1) Dams are intentionally designed to transform

terrestrial environments to aquatic and/or aquatic environments to terrestrial, i.e., impounding

the river floods land upstream and/or dries up lakes and ponds downstream. (2) Damming often

occurs without the consent of the impacted community, i.e., The United Nations Environment

Program (UNEP) World Commission on Dams (WCD) estimated that since the end of WWII

large-scale damming projects have been responsible for the displacement of roughly 40-60

million people from predominately indigenous, tribal, and peasant communities (2000: XXX).

(3) Generally, dams are built to further economic growth and development; thus, construction

occurs without ill intent or a desire to harm the impacted community (despite the fact that as

previously discussed there are examples to the contrary – e.g., Saddam’s assault on the Ma’dan).

(4) But sadly, even benign damming projects have often resulted in widespread corrosion of the

local populations’ vital interests. Thus, in the hopes of illustrating how and why damming may

cause social death we will examine the James Bay I initiative.

At the end of WWII, the Quebecois government created a public utility called

QuebecHydro aimed at expanding the province’s hydroelectric power (Churchill 2002: 296). The

utility grew rapidly in scope, scale, and ambition; in fact, by 1963 it was the largest employer in

the province (Churchill 2002: 297).

Ultimately, Quebec-Hydro aspired to supply power to much of the Eastern Seaboard and

began developing a plan to achieve this, dubbing it the James Bay Project (Churchill 2002:

297298). The scale of the project was colossal; Phase One alone was responsible for “moving

enough earth to recreate the Great Pyramid of Cheops eighty times over” (Churchill 2002: 298).

The stated developmental goal was to build roads, houses, airports, and most importantly dams

in the hopes of opening up the wilderness of James Bay to “civilization.” However, a problem

with the plan was that there was already civilization there! The Cree had inhabited the James

Bay region for generations and desired to keep it that way. Thus, as development began

encroaching on their territory the Cree filed suit to enjoin further construction in the region.

Initially, the Superior Court ruled in favor of the Cree and halted further construction; but

in 1973 the Court of Appeal overturned the injunction, stating that it was in the “interest” of the

“greater society” to allow the development to proceed (Churchill 2002: 299). Nevertheless, the

Court of Appeal ruled that the Cree would be entitled to sue for damages (Churchill 2002: 299).

Consequently, the threat of future litigation drove Quebec-Hydro to attempt to settle with the

Cree to avoid astronomical payouts down the road. But the Cree voted to reject Quebec-Hydro’s

offer (Churchill 2002: 300).

In response, the Canadian government established a development-friendly committee of

Cree (comprised of predominantly southern members of the tribe who were further integrated

into mainstream Canadian society) called the “Grand Council of the Crees of Quebec” to

negotiate on “behalf” of the Cree still inhabiting James Bay region (Churchill 2002: 299). This

group had no historical precedent or traditional role in Cree culture; it did not even exist prior to

the negotiation.

Ultimately, the “Grand Council of the Crees of Quebec” agreed to accept $135 million as

compensation for use of “their” land; additionally, an annual stipend was allotted to pay Cree

hunters who were unable to subsist on the land anymore; and finally, funds were committed to

assist any village that needed to relocate in the event of flooding (Churchill 2002: 300).

However, the indigenous northern Cree still living in the James Bay region objected to the

agreement, “not wanting to relinquish aboriginal rights to their homeland and, for the first time,

accept ultimate federal and provincial authority over their affairs” (Churchill 2002: 301).

Despite indigenous protests as soon as the agreement was reached construction resumed post

haste and by 1979 the La Grande River (third largest in Quebec) and two of its smaller

tributaries, the Eastmain and Caniapiscau had been dammed, “transformed from free-flowing

currents into a series of stagnant lakes and ponds incapable of supporting most life forms

(Churchill 2002: 301). The environmental toll caused by damming the La Grande was immense,

in total an estimated 12,000 square kilometers of forestland was inundated, resulting in the loss

of 83,000 linear kilometers of shoreline (Churchill 2002: 305). "The rims of [the La Grande]

reservoirs do not, and cannot, replace any of the lost wetland habitat; they are broad, lifeless

banks of mud, rock and dead trees" (McCutcheon 1991: 98).

The mammals (beaver, muskrat, snowshoe hare, mink and otter) that the Cree hunted as a

source of food and fur either migrated or died (Churchill 2002: 305). Fish stock plummeted after

the loss of their spawning ground and migratory birds stopped returning to the area as their

routes and target destinations disappeared (Churchill 2002: 305). All of these ecological changes

proved devastating to the Cree’s traditionally broad-spectrum means of subsistence, which in

turn led to rapid social deterioration:

As traditional life has quickly disintegrated along the La Grande, social decay has come

to be manifested in spiraling rates of alcoholism, glue sniffing among young people and other

forms of substance abuse. Concomitantly, domestic violence, child abandonment and

suicide, all of them virtually unheard of among the Cree until recently, have made their

ugly appearances. (Churchill 2002: 306)

Uncontrovertibly, damming the La Grande resulted in ecocide; but additionally, it seems

indisputable that damming the La Grande was directly responsible for stripping the Cree of their

vital interests, i.e., the Cree lost control of their homeland, their means of subsistence, their

ancestral traditions, and meaning in their lives. As native activist Terrance Nelson informed Ward

Churchill, “it's one thing to say they should find meaning in their lives by struggling to reclaim

their homelands and traditions…but how are they supposed to do that when the homeland itself

is under eighty meters of water” (Churchill 2002: 319).

While it is clear that the environmental harm caused social death; the stress, anxiety, and

fear accompanying the loss of their traditional way of life without any viable replacement caused

physical death as well, e.g., Devastation of the Cree: Final Report documents that suicide rates

of native teens were eleven times higher than whites (1986: 97). Ultimately, as the habitat died

so did the indigenous Cree and their way of life.

It appears the James Bay I project represents a clear example of ecocide that satisfies the

four criteria: (1) La Grande dam complex was constructed intentionally under the socially

beneficial guise of development; (2) without the consent of the local Cree; (3) yet, the developers

harbored no ill intent towards the Cree (in fact those responsible agreed to compensate and assist

the impacted communities); (4) nevertheless, the project was responsible for stripping the Cree

of control of their vital interests. With these elements met, the James Bay I project is a clear

instance of ecocide caused by damming, which fits the Transitional Justice framework. In

subsequent sections, we will explore what reparatory and reconciliatory measures the Cree ought

to be afforded, but for now the aim is to move on and provide additional examples of ecocide

that satisfy the four elements.

B. Nuclear Weapons Testing

Every phase of nuclear weapons production from mining uranium, to developing and

testing the weapons, to storing spent nuclear fuel involves the potential for ecocide. The fallout

from nuclear contamination can last thousands of years creating “sacrifice zones” that are

permanently ecologically impaired and foreclosed from productive use.

But for our purposes the testing phase appears most suited to satisfy the four elements for

situating ecocide within the Transitional Justice framework. For one, the environmental harm

caused in the testing phase is intentional, i.e., increasing national security by ascertaining the

weapon’s capacity for environmental destruction is precisely the objective of the test. Whereas,

the environmental destruction that occurs during the mining, building, or storage phase(s) is

most likely an unintended, inadvertent, and unbeneficial consequence of working with

radioactive

material.

Secondly, nuclear testing has often been conducted without the consent of the impacted

group(s) (Ruff 2015). Already at the Dawn of the Atomic Age (July 16th 1945) the detrimental

short and long-term health and environmental effects of nuclear explosions were partially

recognized, thus testing occurred in sparsely populated areas within the state’s contiguous

borders or more commonly it was exported to isolated colonial territories (Ruff 2015: 777778).41

The decision regarding where to locate nuclear test sites clearly expresses government’s marked

unwillingness to risk harming their majority population; consequently, the ills of nuclear fallout

have been disproportionately distributed to marginalized minority groups (Ruff 2015:

777-778).

Obviously, the easiest way to ensure the land was available for testing was to exclude the

marginalized indigenous inhabitants from the decision-making process. As such, the impacted

communities seldom consented to the nuclear trials and were often unaware of the dangers the

tests posed (Ruff 2015).

Nevertheless, the tests were not motivated by genocidal intent, e.g., of the over 2,000

nuclear explosions only at Hiroshima and Nagasaki were the bombs used as weapons of mass

destruction. In all other instances, the detonations occurred with the supposed beneficial aim of

researching and developing weapons, i.e., making them more destructive, more compact, more

deliverable, understanding their impact, and strategizing their use (Stockholm International

Peace Research Institute 2014).

While it might be true that one of the goals of nuclear testing was to study the impacts of

radioactive exposure on humans, there is no evidence that the objective was the social death of

the affected group, i.e., the harms were not committed with genocidal intent, but instead as a

means of collecting data on the effect of nuclear explosions on human bodies and their habitat.

As a British intelligence report states, “the Army must discover the detailed effects of various

types of [nuclear] explosions on equipment, stores and men, with and without various types of

protection” (Tubanavua-Salabula et al 1999: 15).

Therefore, any group-level injuries that emerged were inadvertent consequences of the

state’s often reckless disregard for these peoples’ wellbeing, but not overtly orchestrated attempts

to cause their social death. In fact, after the tests, accountable nations responsible for the tests

occasionally endeavored to provide care and compensation to the victims (Ruff 2015).

However, the above comments do not mean to imply that nuclear testing never undermined the

vital interests of affected communities because undoubtedly in many instances it did. Thus, in the

hopes of illustrating how and why nuclear testing may result in inadvertent social death, we will

examine the impact of the British Maralinga nuclear testing range on the Anangu people.

According to the Preparatory Commission for the Comprehensive Nuclear-Test Ban

Treaty Organization, between 1955 and 1963 the British military conducted twelve atmospheric

nuclear explosions at Maralinga in South Australia (2012). Prior to the tests the Anangu people

had inhabited the land for thousands of years. The Anangu were a semi-nomadic huntergatherer

society, whose lifestyle was deeply dependent and connected with the local environment. As

Yvonne Edwards (an Anangu survivor of Maralinga) states in her book Maralinga’s Long

Shadow:

Before Maralinga the Anangu people cared for their country for generation after

countless generation. Their land was their being, their spirit, their life. They knew no other.

They wanted no other. They loved its rockholes and red sands, its creatures great and small, its

trees, its bushes, its flowers, its fruits. Above all they cared for its kapi, its water, its

precious water, and used it wisely, walking many miles from one rockhole to another,

always seeking permission from Wanampi, the Rainbow Serpent, who guarded each one,

before they took the living water. (Mattingley and Edwards 2016: 1)

Prior to the tests the Australian government revoked the Anangu’s aboriginal reserve of

Ooldea and forced the Anangu to relocate hundreds of miles south of their traditional range to

the Yalata aboriginal reserve (Mcpherson 2009). Yvonne Edwards, an Anangu artist and survivor,

remembers the forced removal as, “a turbulent day of deep distress. They wept and wailed, and

over 60 years on they still wail at the memory of the betrayal, and how they were forced to leave.

Walking, or on the train. Or on trucks taking them from the home and heartland, which many

would never see again” (Edwards and Mattingley 2016: 23).

However, since the Anangu are nomadic many of them continued to travel through their

ancestral homeland unaware that the tests were occurring or of the risk of exposure to radioactive

fallout (Mcpherson 2009). The Royal Commission issued a damning report denouncing the,

“ignorance, incompetence, and cynicism” of the accountable authorities’ treatment of the

Anangu for failing to recognize, “their special vulnerability to radioactive fallout” (1985, 194).

One obvious mistake Ruff mentions, “[is that] warning signs in English were usually

incomprehensible to the Aborigines” (Ruff 2015: 783). Also, the fact that, “a sole patrol officer,

joined after 4 years by a second officer, was given the task of finding and warning all Indigenous

people in an 80,000 square Kilometer area” is clearly evidence of the government’s rampant

disregard for the Anangu’s wellbeing (Noonan 2016: 2).

Unfortunately, the trials and tribulations facing indigenous peoples that did comply with

the order to remain off the land were often equally tragic:

For example, we were told of how Australian servicemen in the area instructed an

Indigenous nomadic family to remain on the road and not to go into the bush to hunt

because of poison. They had become so terrified of the ‘poison’ that they obeyed instructions

implicitly and 4 of the family of 6 eventually died of starvation. (Noonan

2016: 3)

Furthermore, the reserves that the Anangu were relocated to were hotbeds of violence and

alcohol and drug abuse. As Yvonne Edwards describes, “Anangu began to turn to drugs [petrol

sniffing] and alcohol to blunt their pain, their loss, their longing, to blot out their grief at losing

their homelands” (Mattingley and Edwards 2016: 96).

Tragically, the Anangu’s desire to return home prompted further suffering. In 1974 the

Yalata Community Council was granted salvage rights at Maralinga and homesick Anangu

jumped at the opportunity to return to their ancestral land (Mattingley and Edwards 2016: 77).

Unfortunately, according to the Preparatory Commission for the Comprehensive Nuclear-Test

Ban Treaty Organization, the initial cleanup at Maralinga was inadequate, “[involving] merely

burying various radioactive debris, including plutonium, in pits which were covered with

concrete” (2012). And to make matters worse, the returning Anangu were not given any warning

of the potential dangers. Yvonne Edwards recounts wandering around barefoot through the test

site:

We followed bitumen road to place where bomb went off and we were all standing there

looking – a BIG hole with a big fence around it and NO TREES FOR MILES, no green

leaves, JUST DEAD TREES, lots of dead animals. No kangaroos…Nobody told us we

should wear shoes. We went to have a look. We thought it was safe. But it wasn’t. We

went back to village, told whitefellas. They said, ‘You shouldn’t have been there’ But

nobody told us. (Mattingley and Edwards 2016: 84)

Consequently, the Anangu’s dream of reestablishing their traditional way of life in their

ancestral home of Maralinga had become impossible, “nobody would like to live there now. The

damage that’s been done – you can’t fix that. It’s not good to live there any more” (Mattingley

and Edwards 2016: 198). Part of the problem was that the environmental degradation impeded

the Anangu’s ability to subsist on the land. For instance, Yvonne Edwards recounts a journey to

an area of Maralinga that once had abundant resources, but after the explosions now lay barren,

“all the ladies go [there] for maku (witchetty grubs), digging them out of the ground. Walk, get

lots, plenty there. Good soft sand for cooking maku. We were going every road, lots of roads

were alcohol-related, almost a third of all in the community. Between 1986 and 1991, 15 people

died in alcohol-related road accidents” (Edwards and Mattingley 2016: 97).

there and we followed every road. But no trees anywhere. No grass. No maku. All dead”

(Edwards and Mattingley 2016: 81).

Somberly, a further horror peculiar to radiation exposure is the ever-present anxiety of

future illness, i.e., nuclear survivors have described themselves as feeling like ticking time

bombs waiting for cancer and genetic mutation to strike both on a personal and intergenerational

level. As the Preparatory Commission for the Comprehensive Nuclear-Test Ban Treaty

Organization describes:

Concern about transmitting genetic mutations to one’s children can all have profound and

long-term direct and indirect physical and mental health consequences. Especially among

the indigenous and traditional communities disproportionately impacted, these effects are not

only individual and family, but extend to kin, communities and peoples. (2012)

But, beyond the devastating health (both mental and physical) and environmental

consequences of nuclear testing, many affected communities are left with lingering social,

cultural, and economic costs, e.g., the Anangu lost forever their land, means of subsistence, and

connection to their ancestral traditions. As such, it seems uncontroversial that nuclear testing at

Maralinga resulted in ecocide that stripped the Anangu of many of their most vital interests.

Thus, it appears the Maralinga nuclear tests represents a vivid example of ecocide that satisfies

the four criteria: (1) the atomic weapons were detonated intentionally to destroy the environment

in the hopes of further understanding, researching, and developing the device for the sake of

national security; (2) without the consent of the local Anangu people; (3) yet, the British

government harbored no ill will towards the Anangu (in fact those responsible agreed to

compensate and assist the impacted communities); (4) nevertheless, the tests were responsible

for stripping the Anangu of control of their vital interests.

The Maralinga nuclear explosions are clear instances of ecocide able to fit the

Transitional Justice framework. Thus, in subsequent sections, we will explore what reparatory

and reconciliatory measures the Anangu ought to be afforded. But at present we will move on to

explore a final example of ecocide that satisfies the four elements.

C. Mountaintop Removal Mining

Global supply-chains and patterns of mass production and consumption, i.e., the drivers

of the modern world, depend on large-scale extractive activities, e.g., the procurement of raw

materials far exceeding the subsistence needs of the local population. A troubling indictment of

modernity is that these activities (e.g., logging, fracking, underground mining, strip-mining,

trawler fishing, oil drilling, etc.) provide numerous examples that fit our criteria; but in an

attempt to focus our analysis the work will explore mountaintop removal mining as

representative of the class.

Mountaintop removal (or extreme strip-mining) is a form of open-pit mining that

exposes ore and minerals (mostly coal) by removing the land above (“overburden”) to reveal

desired seam(s). The process involves dramatic topographical alteration of the landscape, i.e.,

decapitating the mountain, hill or ridge to access desired resource(s) and filling in adjacent

valley(s) with the excess rock and soil (“holler/valley fills”) (Burns 2007).46 Thus, mountaintop

removal mining presents an exceptionally vivid case of environmental alteration in that the

of Tjuntjuntjura (Korff 2017). But yet only five of the survivors have been paid a total of

$200,000 in compensation for their personal injuries (Korff 2017).

46 As Shirley Burns explains, because ore and minerals usually exist in multiple stratified layers,

the blast process can be repeated on numerous seams upon a single mountain, which increases

the mine depth each time and often result in a vertical descent hundreds of feet into the earth

below where the mountain once stood (Burns 2007).

process in days can undo millions of years of geological activity.

Furthermore, mountaintop removal mining projects intentionally degrade the

environment in an escalating chronological sequence: (1) local animals are exterminated or

relocated; (2) the land is deforested and defoliated; (3) topsoil is scraped off; (4) explosives are

used to dislodge unwanted strata of overburden, and (5) the overburden is deposited in adjacent

valley(s) (Burns 2007). Additionally, projects often cause unintended environmental harm(s)

beyond the procedurally necessary phases mentioned above, e.g., structures containing “mine

tailings” and “slurry” (hazardous material and waste that is left over from the extraction process)

can leak, rupture, or burst contaminating rivers and ground water; avalanches, landslides, and

mud/debris flows are occasionally triggered by the artificial seismic vibration of explosions and

the destabilization of the mountain face;49 forest, brush, and coal seam fires may occur when

exposed coal is struck by lightning or comes in contact with fire during mining operations; and

invariably, windblown dust particles and other loosened debris settle in, disturb, and pollute local

habitats for scores of miles.

Resident populations seduced by the allure of economic development, job opportunities,

and increased wealth often consent to large-scale resource extraction -including mountaintop

removal mining. In subsequent chapters, while discussing the topic of responsibility the

dissertation will investigate such cases, but for now the focus remains on instances where an

affected population did not consent. In terms of our analysis, El Cerrejon mining project in the

La Guajira region of Colombia offers a vivid and useful example in that two distinct cultural

groups (the indigenous Wayúu and Afro-Colombian villages) never consented to the operation

and their vital interests have been gravely undermined.

El Cerrejon mining is the largest mining project in Latin America (Boader 2013: 52). It

consists of seven open-pit mines extending over 270 squares miles centered around Cerrejon

Mountain in the foothills of the Sierra Nevada de Santa Marta and Serrania del Perija mountain

ranges in the Guajira Peninsula of Northeast Colombia (Kline 1987: 49). Excavation of Cerrejon

Mountain began in 1985 as a joint venture between Carbocol (a Colombian state company) and

Intercor (a subsidiary of ExxonMobil) (Redner 2014: 54). The scale of the project is immense,

i.e., according to Cerrejon Mining’s internal report from 2012; the mine has produced 509

million tons of coal since opening (accounting for almost 5% of its global coal sales).52 But

numerous Wayúu and Afro-Colombian residents of the region have not benefited from the

increased economic productivity.

The Wayúu are an indigenous group that has populated the Guajira Peninsula for at least

500 years (Zapach 1997: 1). They were the pre-Columbian inhabitants of the region and never

assimilated during Spanish colonial rule or after Colombian independence (Zapach 1997: 2). The

Wayúu were able to maintain their traditional way of life in part because of the inhospitality of

the terrain and the widespread belief that it held scarce economic value. As Marla Zapach

recounts after her anthropological exploration of the region:

The ground is baked hard by the unyielding sun and winds that buffet the peninsula, and

there is little water to alleviate the incredible heat of the desert. The ground covering is almost

nonexistent, the majority of vegetation being cactus or spiny bushes; and few trees exist

under which to find shade. The land is suitable for only the most hardy of people and animals.

(Zapach 1997: 1)

Thus, despite the fact that the Wayúu are the largest indigenous group in Colombia

(numbering about 500,000 and occupying over a quarter of the national territory) they received

minimal state interest prior to the advent of El Cerrejon (Boeder 2013: 55).

Historically, the Wayúu relied on natural or man-made dugouts to catch rainfall and

facilitate ground water percolation as a means of subsisting in their exceedingly arid habitat

(Zapach 1997: 15). Nevertheless, recurring droughts forced the Wayúu to embrace a nomadic

lifestyle requiring, “constant movement…throughout the peninsula [to] prevent the sole

dependence on one water source and ensure better use of available resources by utilizing all

areas of the peninsula” (Zapach 1997: 15-16).

Prior to Spanish contact (1499) the Wayúu practiced a broad-spectrum subsistence-

lifestyle based on fishing along the coast, hunting, e.g., deer, rabbit, fox, turtles, iguanas,

armadillos, turtles, and birds, gathering, and limited agriculture (consisting of mostly corn and

yucca) (Zapach 1997: 18 and 26). Interestingly, the Wayúu opted to modify their lifestyle and

embrace nomadic pastoralism after the introduction of European domesticated herd animals

(primarily shepherding goats and sheep because the region was too arid for horse or cattle

rearing) despite the fact that they were never conquered, colonized, or assimilated into the

dominant culture (Zapach 1997: 22-23). Consequently, nomadic pastoralism remained the

Wayúu’s principal mode of subsistence until mining at El Cerrejon began to disturb the region’s

ecosystem.

Obviously, surviving in such an unforgiving habitat is difficult and any disruption or

added adversity poses a dire threat. But the Colombian government and multinational

corporations failed to adequately consider the impact of El Cerrejon on the Wayúu’s way of life.

In 1973 the Colombian government without assessing indigenous claims to the land, offering

compensation for loss, or even discussing the matter with the Wayúu declared the El Cerrejon

region a reserva especial, reserving the national government’s right to use (“mine”) the land

(Rivera 1986). Furthermore, it was only after the arrival of international mining companies that a

Social Impact Assessment aimed at understanding and reducing the harm of the project on the

indigenous, mestizo, and Afro-Colombian communities of the region was undertaken (Kline

1982). Shockingly, the report contained little mention of the Wayúu or the impact the mine

would have on their way of life, despite the fact that they accounted for 40% of the peninsula’s

population (Kline 1982: 34-37).

As Zapach citing Rivera explains one reason the Wayúu are virtually absent in the Social

Impact Assessment is that due to their nomadic lifestyle they never permanently inhabited the

region under investigation, “it appears that they occupied them only during times of drought”

(Zapach 1997: 57 and Rivera 1986: 116-117). Sadly, yet predictably, the Social Impact

Assessment failed to consider a pressing issue that during droughts bands of Wayúu dependent

on the water and grazing land or on surrounding Cerrejon Mountain would be left with nowhere

to turn.

Problematically, when such conditions occurred, the affected Wayúu had no available

recourse but to enter resguardos (government supported reservations) and give up their

traditional nomadic lifestyle. “In order to literally survive and stop the onslaught of threats, they

must choose to abandon their animals and the only lives they have known as self-sufficient

pastoralists” (Boeder 2013: 57). As Zapach articulates, these decisions (made under duress) have

greatly undermined Wayúu autonomy and destroyed their way of life:

A group once so fiercely independent and solitary is now relegated to resguardos where

there is insufficient land to provide for them and their families. Their lives revolve around

the land: and to feed oneself and one's family, one must have land on which to sow and to

graze one's animals. To participate in the cultural activities that mark one as Wayúu, such

as prestige exchanges, large families, many goats, and participation within bridewealth

and funeral exchanges, one must have land as the basis to provide for all of this. (Zapach

1997: 55)

Thus, the environmental destruction caused by the El Cerrejon mining project is creating

a situation in which the Wayúu, a proud and fiercely independent people that resisted conquest,

colonization, and assimilation for hundreds of years, are increasingly reduced to a life of

dependence, i.e., forced to rely on state assistance for survival or absorption into the dominant

culture. But the Wayúu are not the only group affected by mining Cerrejon Mountain; the

AfroColombian communities inhabiting the region have been impacted as well.

Tabaco (formally the largest village in the El Cerrejon region) was settled hundreds of

years ago by escaped Afro-Colombian slaves, mestizo peasants, and natives fleeing encomienda

(the exploitative colonial system of forced labor imposed on conquered communities throughout

the Spanish Empire) (Chomsky and Forster 2006). The community was self-sufficient and

subsisted by growing fruits and vegetable and raising goats and chickens (Boeder 2013: 54). At

the time of excavation Tabaco had developed into a village with running water, electricity, a

school, police department, health center, and a population of over 700 inhabitants (Boeder 2013:

as they cannot return home, nor can they survive on the land granted (Zapach 1997: 55).

54).

But Tabaco sat on lucrative coal seams that the El Cerrejon conglomerate wanted to

access. Thus, in the early 1990s representatives of the company bid to buyout villager’s land

titles; promising that, “they would still be able to farm it or the company would reward them

with new houses in town, job training, and higher incomes” (Boeder 2013: 54-55). Moreover,

community activists explain that the company simply, “informed communities of their plans and

never warned them about mining’s negative consequences” (Redner 2014: 54). As Jose Julio, a

former resident of Tabaco explains, “a lot of people sold, because it seemed like a gift. Even

though the price they paid was laughably low, it was like getting something for nothing”

(Chomsky and Forster 2006). Consequently, by 2001 around 600 of the residents had

relinquished title to the company, but over 100 still remained and refused to leave their homes,

“[since] as farmers, they knew that if they lost their land, they would also lose their source of

food, their history, their cultural identity, and their shared traditions” (Boeder 2013: 55).

Nevertheless, to quell the resistance the Ministry of Mines and Energy declared the region a

mining reserve (authorizing an area speciously affirmed uninhabited and zoned for mining)

despite the fact that the area was clearly populated (Boeder 2013: 55). The community protested

the ruling and filed suit; but on August 9, 2001, a judge sided with the company ordering the area

to be cleared and vacated. “Within hours, employees of Cerrejón, 500 soldiers, and 200

policemen invaded the church, forcibly evicted everyone, and bulldozed every home flat”

(Boeder 2013: 55).

A problem for our analysis is that under both Colombian and international law56 the

treatment of the Tabaco villagers constitutes an indigenous rights violation. Nevertheless, to

avoid the direct connection to indisputable indigenous rights violation(s) we could likewise

consider smaller Afro-Colombian villages (e.g., Tamaquito, Roche, Chancleta, and Patilla)

similarly suffering from the environmental harms (e.g., water pollution, air is laced with toxic

dust, illness, crop failure, etc.) caused by mining Cerrejon Mountain that have (as of yet at the

time of writing) not been forcefully evicted (Chomsky and Forster 2006). As Eder Arregoces an

inhabitant of Chancleta (a tiny village in the area) laments:

What a paradox: We are surrounded by the world’s largest coal mine, and we don’t have

enough to eat! Most of the families here can only eat one meal a day, all because we don’t

have land. There is outrageous exploitation that fails to see that there are human beings living

here, there are black and indigenous communities. The environmental situation is worse

than critical. (Chomsky and Forster 2006)

Due to myriad environmental harms stemming from the mining of Cerrejon Mountain,

these local communities have been devastated by ecocide, precipitating the dissolution of their

traditional cultures through depletion of their means of subsistence, undermining their overall

wellbeing. Both Wayúu and Afro-Colombian villagers have suffered polluted water, inhalation

of hazardous dust, malnutrition, diseases, resource scarcity, and loss of land due to the impact of

the mine. Furthermore, both groups have had little opportunity to consent or participate in the

decision-making processes pushing them closer to cultural and physical extinction.

Thus, it appears mountaintop removal mining of Cerrejon Mountain represents a vivid

example of ecocide caused by large scale-extractive activities that satisfy the four criterion: (1)

the mountain was cleared and leveled intentionally for the economic benefit of the nation

(politically and commercially) as well as for corporate profits ; (2) without the consent of the

local Wayúu or Afro-Colombian people; (3) yet, the government or multinational corporations

harbored no ill will towards the groups (in fact those responsible to some extent compensated or

attempted to assist the impacted communities); (4) nevertheless, the project was responsible for

stripping both Wayúu and Afro-Colombian communities of control of their vital interests.

III. Idealized Description of Cases of Ecocide

With the case studies completed, the goal of the remainder of the chapter will be to

further justify integrating ecocide within the Transitional Justice framework by linking the

harm(s) illustrated with examples of typical conceptions of oppression (e.g., Young 1990 and

Cudd 2006). To achieve this, it will be helpful to create a descriptive model of generalized terms

that captures the crucial elements of the aforementioned narratives. Mills defends such an

approach, emphasizing the importance of abstracting away non-salient situational features during

effective normative theorizing:

What one wants are abstractions of the ideal-as-descriptive-model kind that capture the

essentials of the situation of women and nonwhites, not abstract away from them. Global

concepts like patriarchy and white supremacy arguably fulfill this role…These terms are

abstractions that do reflect the specificities of group experience, thereby potentially

generating categories and principles that illuminate rather than obfuscate the reality of

different kinds of subordination. (Mills 2005: 173)

Prudently, stripping away examples of normatively irrelevant detail(s) and producing a

schematic depiction of what Mills calls an “ideal-as-descriptive model” affords further clarity in

our attempt to consider and apply these contingent narratives to specific theories of oppression.

Thus, what are the essential and generalizable features of the above examples?

A. Autarkic Communities vs. Roving Imperialists

All of the examples revolve around outside actors intentionally destroying the ecological

basis of local subsistence. Accordingly, each narrative begins with two distinct groups (1) a

highly localized population maintaining a self-sufficient lifestyle requiring deep epistemic

connection to their environment and (2) an outsider population comfortable with their “right” to

deplete and destroy a local habitat for their benefit. Ramachandra Guha and Joan Martinez-

Alier offer an insightful dichotomy discerning key distinctions between the two groups; dubbing

(1) “‘Ecosystem peoples’ – that is, those communities which depend very heavily on the natural

resources of their own locality and [2] ‘omnivores’, individuals and groups with the social power

to capture, transform, and use natural resources from a much wider catchment area; sometimes

indeed the whole world” (Guha and Martinez-Alier 1997: 12).58

In an effort to borrow from and constructively build upon Guha and Martinez-Alier’s

classification, the work will employ the terms roving imperialists (for ‘omnivores’) and

autarkic61 communities (for ‘ecosystem peoples’). Per this taxonomy, the major difference

between the two groups is that roving imperialists predominantly depend on non-local sources of

subsistence (i.e., interregional or global supply-chains), which consequently decouples

producer(s) from consumer(s) (i.e., separating beneficiaries from first-hand and daily experience

of exploited areas); whereas, autarkic communities predominantly depend on engaging with the

immediate environment for subsistence.62

Relying on recent terminology from Glenn Albrecht’s book, Earth Emotions: New Words

for a New World, we can classify roving imperialists as terraphthoran (Earth destroyers) and

autarkic communities as terranascian (Earth creators) (Albrecht 2019: 1). According, to his

psychological analysis of peoples’ emotional orientation to the natural world roving imperialists

suffer from ecoagnosy, a term created to describe a state of environmental ignorance or

indifference to ecology (Albrecht 2019: 76).63 Whereas, autarkic communities have a strong

sense of endemophilia, which he describes as “the particular love of the locally and regionally

distinctive, manifest in the people of that place. It is what gives a particular sense of belonging,

an endemic sense of place, as opposed to a global sense of place” (Albrecht 2019: 126).

Hence, a recurrent cause of ecocide apparent in the case studies is roving imperialists’

spatiotemporal separation and removal from direct engagement with their ecosystem(s) for

WTO were born in the spirit of frontier demolition. They codify the world as a freely accessible

economic arena, in which economics enjoys the right of way” (Sachs 1999: 154).

61 Simply stated, ‘autarkic’ means a self-sufficient geopolitical entity.

62 Keep in mind that autarkic peoples are not necessarily native inhabitants (e.g., the

AfroColombian villagers of Tabaco). Additionally, the use of the word ‘predominately’

emphasizes that the division between these two groups exists on a spectrum, i.e., autarkic

peoples may maintain limited trade with outside communities and roving imperialists may

partially rely on their immediate habitat for subsistence purposes.

63 Ecoagnosy can even metastasize into “ecophobia” (i.e., David Sobel’s term to describe the

overwhelming fear, at times hatred, of ecology or the biophysical environment) and

“biophobia” (i.e., Stephen Kellert and Edward Wilson’s term to describe fear of life) (Sober

1996 and Kellert and Wilson 1993).

subsistence; since as these actors suffer from growing ecoagnosy and become less attuned,

concerned, comprehending, and impacted by resulting environmental harms, they are more prone

to commit them. Essentially, if actors are not dependent on a place for their survival, then they

are incentivized to exploit, degrade, and destroy habitat(s); consequently receiving lucrative

remunerative short-term benefits, while avoiding exacting long-term costs after moving on to the

next place.65 As Hughes Berkes describes, “roving banditry is different from most commons

dilemmas in that a new dynamic has arisen in the globalized world: New markets can develop so

rapidly that the speed of resource exploitation often overwhelms the ability of local institutions

to respond” (Berkes 2006: 1557).

Consequently, roving imperialists pose an acute existential threat to autarkic communities

when their lifestyles come in contact - as witnessed in the prior examples. The reason for this is

that since autarkic communities are endemophilic and lead a deeply embedded lifestyle within a

long-inhabited place (“homeland”),66 they are not as readily able to adapt and move on if their

habitat is harmed or destroyed.67 Hence from a basic subsistence perspective, they are reasonably

and self-interestedly concerned with mitigating disruption(s) within their natural environment.

As such, if widespread breakdown(s) of system(s) of natural relationship(s) occur within

an autarkic community’s habitat, such event(s) constitute failure(s) of safeguarding their most

vital objective. Consequently, success for autarkic communities is maintaining homeostasis in

their habitat by preserving the ‘commons’ for all cohabitants of the environment. Accordingly, as

66 Ignasi Ribo describes such people as, “a community of individuals who share a way of being,

due to the confluence of genetically and socially acquired dispositions, as well as the set of

strategies, practices, and institutions that allow them to adapt to a given natural environment in a

sustainable manner, thanks to bonds of autonomy, reciprocity, and friendship” (Ribo 2012: 8). 67

Albrecht’s concept of solastalgia offers an insightful description of a psychological state that

members of autarkic communities likely experience after ecocide. He defines solastalgia as “the

pain or distress caused by the ongoing loss of solace and the sense of desolation connected to the

present state of one’s home and territory. It is the existential and lived experience of negative

environmental change, manifest as an attack on one’s sense of place, characteristically a chronic

condition, tied to the gradual erosion of identity created by the sense of belonging to a particular

loved place and a feeling of distress, or psychological desolation, about its unwanted

transformation (Albrecht 2019: 38-39).

illustrated in each of the examples, the ongoing global environmental crisis brought about by

roving imperialism’s encroachment on native habitat(s), devastates autarkic communities’ core

values and way of life.

B. Ecocide and Socio-Cultural Collapse: Loss of Habitat Learning

Additionally, as witnessed in each of the case studies the breakdown of autarkic

communities can transpire rapidly with little prior notice. One reason supporting this is that

achieving long-term self-sufficiency in any local environment necessitates a broad-spectrum

lifestyle, capable of meeting subsistence needs by utilizing a wide variety of animals, plants,

minerals, and aquatic resources in order to avoid overburdening any one resource-component of

the ecological community’s intricate bio-socio-cultural stability. Maintaining this sort of

balanced lifestyle requires extensive knowledge of the systemic relationship between a local

environment’s parts and whole. To pass on such wide-ranging and detailed knowledge requires

autarkic communities to practice habitat learning whereby members of the group transmit

knowledge about the local environment to each other.73

But if roving imperialists disrupt the local environment, there is a chance that some of the

habitat learning will have become obsolete for the reason that it less accurately reflects the

current state of the habitat. Hence, as a rule, the greater the environmental disruption, then the

greater the chance that the information-rich cognitive capital (regarding the habitat) has been

corrupted and compromised. Consequently, the destruction of the habitat, not only leads to direct

resource depletion, but also generates more than a few cognitive-costs that diminish the survival

benefit of habitat learning.

As such, once the stable functioning of the ecosystem is undermined, it becomes

increasingly challenging for the autarkic communities to rely on habitat learning to maintain

self-sufficiency, which represents an unfortunate consequence in each of the case studies. Also,

troubling, is the tendency of the epistemic loss to carry over and amplify itself in the next

generation. Such a result is likely, since henceforward, students will have relatively fewer

models, both in terms of individual’s correctly performing/teaching habitat learning and

exposure to a properly functioning ecosystem that is necessary for garnering the ability to

recognize when the system is in harmony (i.e., knowledge is stored in the ecosystem itself, thus

if the ecosystem is harmed, then this extended knowledge is corrupted as well).

Furthermore, habitat learning is often nontransferable to different ecosystems if autarkic

communities are forced to abandon their home. Consequently, after ecocide, formerly autarkic

communities that lose their habitat regularly become dependent on novel modes of subsistence

for survival and as such are compelled to invest time, energy and resources in acquiring and

employing nontraditional subsistence techniques. Learning, practicing, and mastering multiple

modes of survival is a difficult undertaking, which subsequently lessens opportunities for

traditional habitat learning.

For all these reasons, if the harm caused by ecocide is not repaired quickly, it may result

in cultural death, forever foreclosing viable avenues that might foster or maintain formerautarkic

communities’ traditional ways of life. Thus, as the examples demonstrate, after ecocide autarkic

communities rapidly deteriorate and lose control of their vital interests. As Jeff Corntassel aptly

explains:

For indigenous peoples, sustainability is intrinsically linked to the transmission of

traditional knowledge and cultural practices to future generations Without the ability of

community members to continuously renew their relationships with the natural world (i.e.,

gathering medicines, hunting, fishing, basket-making, etc.), indigenous languages,

traditional teachings, family structures, and livelihoods of that community are all jeopardized.

(Corntassel 118: 2008)

At this point in the narrative, once the autarkic communities collapsed and are unable to

self-sufficiently subsist in their post-ecocide habitats - we have reached the conclusion of the

case studies. Also, for the sake of conceptual clarity, such a result requires a new category of

human-ecological relations so as to cover the inhabitants of post-autarkic communities. As such,

the work will refer to people(s) living in environmentally degraded habitat(s), wherein their local

ecological systems are unable to sustain traditional lifestyles that are not productively or

consumptively integrated into the global supply chain(s) – as ecocide refugees.77

Essentially, the goal of environmental transformative justice is to assist ecocide refugees

and prevent autarkic communities from deteriorating in the first place - providing guidance for

achieving these objectives will be a core focus of subsequent chapters. But, to further

substantiate the need for redress for the victims of our case studies of ecocide it is helpful to

definitively demonstrate that the resulting harm actually constitutes oppression. Since as Cudd

states (and likely all political philosophers agree), “oppression claims are themselves prima facie

ecocide. “Such losses can include reductions in fishing, hunting, or trapping activity; losses of

identity through the curtailment of these activities; reductions in health, which may be linked to

contamination of traditional foods or adverse emotional and psychological impacts; and negative

effects on cultural, social, and economic relations that historically were based on these altered

activities” (Gregory and Trousdale 2009: 2).

77 The term is comparable to Norman Myers and Jennifer Kent’s description of ‘environmental

refugees’ as, “persons who no longer gain a secure livelihood in their traditional homelands

because of what are primarily environmental factors of unusual scope” (Myers and Kent 1995:

18). The major difference is that in the case of ‘ecocide refugees’ the ‘unusual scope’ is limited

to intentional human destruction of the ecosystem.

moral claims for remedy [i.e., reparations] or redress [i.e., reconciliation]” (Cudd 2006: 129).

IV. Ecocide as Oppression

Oppression is an often-employed socio-political concept that until recently has received

scarce analysis. As Iris Marion Young states, “while we find the term [oppression] used in the

diverse philosophical and theoretical literature spawned by radical social movement…we find

little direct discussion of the meaning of the concept as used by these movements” (Young 1990:

40). Fortunately, feminist philosophers have begun to thoroughly investigate, explicate, and

systematize theories of oppression (Frye 1983; Young 1990; Cudd 2006). As such, we will rely

heavily on this innovative scholarship by attempting to demonstrate that our paradigm cases and

idealized description of ecocide satisfy the conditions of two of the most canonical analyzes of

oppression: (1) Cudd’s definition of oppression in Analyzing Oppression (2006) and Young’s

categorization of oppression in Justice and the Politics of Difference (1990).

A. Ann Cudd’s Definition of Oppression

After an informative historical account canvassing the use of the term “oppression” in

political philosophy Cudd offers a general description of the wrong designed to capture central

features of the various usages. Ultimately, she settles on an account of “oppression” with four

necessary and sufficient conditions:

1. The harm condition: There is a harm that comes out of an institutional

practice.

2. The social group condition: The harm is perpetrated through a social institution

or practice on a social group whose identity exists apart from the oppressive

harm in (1).

3. The privilege condition: There is another social group that benefits from the

institutional practice in (1).

4. The coercion condition: There is unjustified coercion or force that brings

about the harm. (Cudd 25: 2006).

Using Cudd’s schema to prove that instances of ecocide are oppressive requires that the

act constitutes an institutional practice harmful to the member(s) of some social group (i.e.,

reduces members’ well-being and undermines their interests), that it benefits member(s) of

another social group (materially or psychologically), and that the harm was undeserved or unfair.

It is crucial to emphasize that Cudd’s theory of oppression does not require intentional harm, i.e.,

for a practice to be considered oppressive privileged group(s) do not have to necessarily aim at

harming disadvantaged group(s). “I have argued that we should define oppression by considering

the harm done to the victim rather than the intention of the oppressor or privileged group who

cause the harm” (Cudd 2006: 105). This is important because in seminal cases of ecocide under

consideration the harm to the autarkic community was unintended.

Clearly, the idealized account and each of these key cases of ecocide include social

group(s) that existed prior to the harm (i.e., autarkic communities - Cree, Anangu, Wayúu, and

Afro-Colombian villagers) that suffered (i.e., loss of vital interests) and social group(s) that

benefited (i.e., roving imperialists seeking potential benefits: Quebec-Hydro’s additional

revenue, British citizens’ increased security, El Cerrejon miners’ employment, etc.). Obviously,

the intruder’s act(s) (or institutional practices) prioritized roving imperial benefits over autarkic

communities’ harms.

Nevertheless, were the practice(s) favoring roving imperial interests over autarkic

interests coercive and unjustified? Unfortunately, in our attempt to answer this question, Cudd

offers little guidance; since, she eschews defining “coercion” or “injustice” beyond linking her

use of the concepts to a broadly Rawlsian notion of justice as fairness, in which social benefits

and burdens ought to be distributed impartially (i.e., practices that violated this fairness

requirement are unjust and coercive).79 As such, to establish that the coercion condition is met,

we must determine if roving imperialist’s treatment(s) of autarkic communities was unfair.80

Generally, practice(s) and act(s) are considered “fair” in two distinct ways: (1) procedurally fair

or (2) outcome fair. Procedural fairness focuses on the process (the means) of normative

decision-making; whereas, outcome fairness refers to whether or not the results (the ends) are

consistent with prevailing norms of merit, equality, desert, and need (Deutsch 1985). John

Thibaut and Laurens Walker’s iconic research uncovered that perception of fairness increase, as

all parties who are possibly impacted by an act are included in the decision-making

purposes such a criticism is ancillary as we are simply including her definition as a means of

illustrating how she employs the term.

79 The dissertation’s Third Chapter will further explore and develop the ways in which

Rawls’s constructivist theory of “justice as fairness” diagnoses the injustice of ecocide.

80 Philosophers have struggled defining “fairness” since the term applies to a multitude of

distinct and often-conflicting concerns oscillating between appeals to need, equality, merit, and

desert. For instance, Aristotle recognized that there is no universal standard of fairness. Since, as

he astutely observed determining if an act is fair requires contextualized analysis that embeds the

act within broader social structure(s), e.g., in a democracy it is fair to distribute political office

by lottery; whereas, in an oligarchy it is not (Aristotle The Politics: Book V, Chapter 1). As

Amartya Sen explains, even John Rawls employs a pre-theoretical understanding of the concept.

“In this [Rawls] approach, the notion of fairness is taken to be foundational, and is meant to be,

in some sense, ‘prior’ to the development of the principles of justice” (Sen 2009: 53-54).

Consequently, with these examples in mind, we can begin to grasp some of the difficulties

involved in defining the term.

process (Thibaut and Walker 1975). Consequently, procedural fairness revolves around an

understanding that all stakeholders potentially affected by a decision ought to be afforded the

opportunity to provide input (i.e., express their voice) and influence the outcome (i.e.,

substantively participate to some degree) of the decision.

However, in reviewing the paradigm cases of ecocide, it seems clear that local inhabitants

were offered neither an opportunity to substantively alter the outcome (i.e., stop the harm from

occurring or mitigate the impact) nor a voice (i.e., they were excluded (Anangu), absent

(Wayúu), and ignored (Cree and Afro-Colombian villagers)) during the decision-making process.

Thus, it seems straightforward that norms of procedural fairness were violated as roving

imperialists intentionally destroyed autarkic community’s habitat(s) without their input or

involvement.

Moreover, roving imperialist’ acts of ecocide appear problematic from an outcome

fairness perspective as well. Since, one can argue that the consequences of the act(s) violated

prevailing norms of merit, equality, desert, and (most pertinently) need by allowing the lesser

interests of the invading group (i.e., enhancing profits, acquiring non-essential knowledge,

commercial development, etc.) to trump vital interests and needs of local inhabitants (i.e.,

maintaining the cultural survival of their traditional way of life and preserving the habitat). This

idea will be developed in greater detail in subsequent chapters, when we demonstrate the

injustice of ecocide through both constructivist and comparative approaches to justice.

But at present the work will avoid undertaking the potentially intractable challenge of

devising a hierarchy of values and interests and instead simply highlight that there does appear to

be prevailing consensus (maybe more so in environmental philosophy) that existential needs

(e.g., continued existence of species, ecosystems, cultures, etc.) ought to take precedence over

non-survival related interests. As John Baird Callicott states, “having the bare necessities for a

decent life is a stronger interest then in the enjoyment of luxuries…but livelihood and lifestyle,

for both of which adequate substitutes can be found is a lesser interest than life itself” (Callicott

1999: 126-128).

Callicott in an attempt to further develop and apply this norm analyzes a logging dispute

in the Pacific Northwest. He argues that from a normative perspective the old-growth forest

ought to be preserved because the existential interest and survival needs of Strix occidentalis (a

species of spotted owl) to inhabit the forest, takes precedence over the economic and labor

interests of loggers to fell trees:

The spotted owl is threatened with preventable anthropogenic extinction – threatened

with biocide, in a word – and the old-growth forest biotic communities of the Pacific North-

west are threatened with destruction. These threats are the environmental equivalent of

genocide and holocaust. The loggers, on the other hand, are threatened with economic losses,

for which they can be compensated dollar for dollar. (Callicott

1999: 128)

Callicott’s conclusion rests on the premise that existential interests are final and

irreplaceable (i.e. if the owls go extinct, they are gone forever), whereas lesser interests (e.g.,

financial, labor, aesthetic, recreational, etc.) are transitory and substitutable (e.g., if loggers lose

their jobs, they can be employed in another industry). As such, if we apply the above perspective

to the case studies, then it seems uncontroversial that allowing the economic, epistemic, and

lifestyle interests of roving imperialists to take precedence over the existential needs of autarkic

communities (i.e., preserving their habitat and traditional way of life) was an unfair and unjust

result that violates prevailing norms of need.

Thus, at this point in our analysis three out of four (the coercion condition, the harm

condition, and the privilege condition) of Cudd’s conditions of oppression have been

demonstrably met. As such, all that remains is to show that the harm resulted from social

institution(s) or practice(s) to satisfy the social group condition.

First, it must be noted that Cudd defines “social institutions” broadly to include,

“government, legal systems, schools, banks, gender rules and norms, rules of etiquette, media

outlets, stereotypical beliefs, class, caste systems, racial, or ethnic classification systems” (Cudd

2006: 50). Therefore, per Cudd’s account, the acts of ecocide covered in the case studies

constitute institutional practices, since they include government involvement or at least state

sanctioning, authorization, or legal approval.

One might object that establishing institutional practices require enduring, systemic,

pervasive, and recurring patterns of behavior; and therefore, the harm(s) of ecocide under

consideration (e.g., a nuclear explosion, constructing a dam, mining a mountain, etc.) are too

short-lived to count. But Cudd explicitly denies this claim and affirms the possibility of onetime

events constituting institutional cases of oppression, e.g., she cites the examples of war and

genocide, “although these are cases of oppression, they are typically not long lasting…war is an

acute form of oppression” (Cudd 2006: 99). Consequently, if unjust wars or genocides are

institutional practices of oppression, then there seems to be no compelling justification for

excluding ecocide. Thus, the paradigm cases and idealized description of ecocide satisfy Cudd’s

four necessary and sufficient conditions for constituting oppression.

B. Iris Young’s Categorization of Oppression

For Young oppressive circumstances are ones in which, “people suffer some inhibition of

their ability to develop and exercise their capacities and express their needs, thoughts, and

feelings” (Young 1990: 40). It is important to emphasize that Young agrees with Cudd that

oppressive harm does not require intent, “the conscious actions of many individuals daily

contribute to maintaining and reproducing oppression, but those people are usually simply doing

their jobs or living their lives, and do not understand themselves as agents of oppression” (Young

1990: 42). Once again, the reason this is important is due to the fact that the harm in the

propounded key cases of ecocide under consideration are largely incidental. Nevertheless, for

Young, as with Cudd, what matters is that another group benefits from the oppression, “for every

oppressed group there is a group that is privileged in relation to that group” (Young 1990: 42).

But Young, unlike Cudd, is less interested in defining a set of necessary and sufficient criteria

that apply across all cases of oppression and instead focuses on classifying forms of oppression.

Ultimately, she settles on dividing oppression into five categories: exploitation, marginalization,

powerlessness, cultural imperialism, and violence (Young 1990). For the remainder of the

chapter, we will survey how the submitted key cases and idealized description of ecocide fits

these five categories.

But bear in mind, according to Young for a practice to be oppressive, it only needs to

satisfy one (not all five) of the forms. Nevertheless, for the sake of maximum conceptual

applicability this section will attempt to demonstrate that our cases of ecocide can potentially fit

each of the five categories of oppression. However as will become abundantly clear, some of the

categories are much better fits (i.e., marginalization and powerlessness), than others (i.e.,

exploitation, cultural imperialism, and violence).

1. Violence

Violence is probably the most glaring and overt form of oppression, as violent behavior

constitutes a specific flagrant, direct, and immediate harm to victim(s). Young does not provide a

definition, but Cudd defines “violence” as, “the intentional, forceful infliction of physical harm

or abuse on one or more persons or their material or animal possessions” (Cudd 2006: 87). Cudd

defends her decision to include injuries and damages against possessions within the scope of

‘violence’ on psychological grounds, “it makes sense to include forceful abuse of property as a

kind of violence because forceful abuse of one's property, especially of animals, portends or

threatens forceful abuse of one's person. It threatens the victim through the show of force” (Cudd

2006: 87).

Obviously, such a definition of ‘violence’ is helpful for our purposes since in the case

studies harm was never intentionally inflicted upon people; nevertheless, their material and

animal possessions (i.e., the local habitat that they depended on for survival) were directly

targeted for destruction. Also, pertinent for our commitments is Cudd’s insight that unintended

displays of force can be classified as violent. As Cudd explains, what matters for determining if

an act is violent is the psychological impact on the affected community:

It is important to consider the effect and not the intention here because what matters in

considering how violence constructs oppression is how it constrains social groups.

Constraints are transmitted through the perceptions of the people who would make up the

putative group. Thus, it is the perceptions of the affected, not the intentions of the violent

persons, that matter. (Cudd 2006: 88)

Accordingly, some of the examples of ecocide under consideration seem constitutive of

violence in that members of the affected communities expressed shock, fear for their safety and

wellbeing, and even terror from witnessing the widespread environmental destruction, e.g.,

during the Maralinga nuclear tests terrified Anangu elders thought the approaching black mist

from the fallout, “was an evil spirit and tried to use woomera (spear-throwers) to disperse it [for

their own and the communities protection]” (Sebag-Montefiore 2016).

Furthermore, one can hardly imagine autarkic communities’ sense of hopelessness and

impotence when confronted with the prospects of challenging a force powerful enough to level

mountains or stop rivers from flowing. As such, it seems plausible that some cases of roving

imperialists’ intentional destruction of autarkic communities’ ecosystems may constitute

instances of oppressive violence.

2. Cultural Imperialism

Young defines “cultural imperialism” as, “the universalization of a dominant group’s

experience and culture, and its establishment as the norm” (Young 1990: 59). Simply, cultural

imperialism occurs when dominant group(s) render(s) oppressed group(s) cultural perspective

invisible or obsolete. This is comparable to what occurs when roving imperialists (the dominant

group) alter habitats without considering, recognizing, or regarding impacts to autarkic

communities (“the other”) way of life. In such scenarios (e.g., those covered in the sample

seminal case studies and idealized description(s)), the autarkic communities experience rapid

cultural loss due to their invisibility, meaninglessness, and palpable irrelevance to the dominant

roving imperial culture.

In summary, roving imperialist values, goals, and achievements justify and enable the

destruction of ecosystems, which in turn undermine, weaken, and erase the values, goals, and

achievements of autarkic communities. “Often without noticing they do so, the dominant groups

project their own experiences as representative of humanity as such” (Young 1990: 59). A

justification explaining roving imperialists’ intentional disrespect of long-established autarkic

communities, is that by ignoring the value of such local cultures it becomes easier to

disenfranchise, dispossess, and displace these inhabitants (i.e., non-dominant groups who are

inconveniently dwelling upon “urgently” needed resources) from their habitat. Thus, by

constantly denying autarkic successes, while showing little interest in preserving their unique

way of life, autarkic habitats becomes easier to exploit both cognitively (i.e., less psychological

guilt) and financially (i.e., current use of land is poorly appraised). Accordingly, it benefits

intruders to feign disinterest or maintain willful ignorance of the life and culture of autarkic

communities, i.e., cultural imperialism may serve a material purpose.

Furthermore, once post-ecocide autarkic communities lose their ability to sustain

themselves through traditional cultural practices (i.e., loss of habitat learning), they assume

subservient dependent relationships with the dominant group for survival as ecocide refugees.

Obviously, such one-sided relationships allow the dominant group to impose their values,

experiences, and interpretation of social life on the oppressed, while concurrently devaluing,

denigrating, and ignoring the values, experiences, and interpretation of social life of the

oppressed; and at the same time, the intruder extracts from the supplicant instrumental value.

Thus, we can clearly see ways in which the seminal cases and idealized description of ecocide

may generate and reinforce oppressive patterns of cultural imperialism.

3. Marginalization

Young argues marginalization maybe the “most dangerous form of oppression” as it

constitutes a whole category of people being “expelled from useful participation in social life

and thus potentially subjected to severe material deprivation and even extermination” (Young

1990: 53). As is evident from our analysis, ecocide facilitates marginalization in that roving

imperialist destruction of ecosystem(s) renders once self-sufficient autarkic communities unable

to support themselves, contribute to their own wellbeing, or bolster their collapsing (or the

broader) society. In our case studies groups marginalized by ecocide (ecocide refugees)

often become dependent on state welfare for survival. Young explains that while welfare

programs assist in ameliorating the harm of material deprivation caused by marginalization, such

practices may generate additional injuries. “First, the provision of welfare itself produces new

injustices by depriving those dependent on it of rights and freedoms that others have.

Second…marginalization is unjust because it blocks the opportunity to exercise capacities in

socially defined and recognized ways” (Young 1990: 54).

Unfortunately, as Young forecast, ecocide refugees often remain stuck in dependent

positions unable to gain new capacities to improve their social status, achieve autonomy, or

promote their wellbeing. Thus, marginalized ecocide refugees are left with lives of boredom and

uselessness and lack self-respect and social-recognition. As the Canadian government’s report,

The Devastation of the Cree (1986), suggests such marginalized lifestyles have exceedingly dour

prospects, “[with their] pride and self-reliance stripped away . . . [f]rom 1985 to 1987, there were

126 suicide attempts…[as] for the first time in centuries, band members realized there is no point

in teaching their children the traditions of hunting and fishing” (96-97). As such, it seems clear

that ecocide can lead to oppressive marginalization of affected group(s).

4. Exploitation

Young relies on a broadened Marxist account of ‘exploitation’ that defines the concept as

any situation, “in which the labor and energy expenditure of one group benefits another and

reproduces a relation of domination between them” (Young 1990: 50). It is difficult to fit our

paradigm cases of ecocide within such a framework because the examples lack an ongoing

transfer of energy from autarkic communities to roving imperialists.

Nonetheless, we can envision situations in which autarkic community’s past energy

expenditures enhanced their habits in ways that later benefited roving imperialists. In such a

scenario, the seeds (both literal and figurative) of autarkic communities’ labor to sustain, nurture,

and develop their habitat across generations are subsequently seized and harvested by roving

imperialists. Thus, these instances of appropriative resource-transfer, involving autarkic

communities’ historical labor as stewards who generate, maintain, and preserve the very

“natural” resources that roving imperialists seek to extract, can be viewed as constituting

exploitation. Since, in such situations, roving imperialist(s) benefit from extracting

uncompensated value from labor, energy, and effort autarkic communities unwittingly supplied.

But a problem with such an analysis is that this form of resource exploitation, is not a requisite

feature of the case studies (e.g., it was not a harm experienced by the Anangu during the nuclear

tests at Maralinga). Furthermore, this sort of exploitation automatically ceases after ecocide has

occurred, in that the labor, energy, and effort autarkic communities invested into their

environment, which roving imperialists were taking advantage of, is lost once the habitat is

destroyed. As such, it makes more sense to categorize these cases as one-time thefts, rather than

instances of continuing exploitation.

Nevertheless, another way in which we might conceive of the case studies as related to

exploitation is by emphasizing their role in generating conditions ripe for exploitative practices.

To grasp the connection requires recognizing that after completing extractive project(s) (e.g.,

mountaintop removal mining) roving imperialists are left in an increasingly privileged position

having gained wealth; but also, they have furthered their relative social dominance vis-a-vis

destabilized autarkic communities. Hence, ecocide has generated unequal distributive outcomes

(regarding both good(s)/benefit(s) and bad(s)/harm(s)) between autarkic communities and roving

imperialists.

But more significantly as it applies to all the case studies, the environmental destruction

ruins autarkic communities’ traditional mode of subsistence, diminishes their material capital,

and as such increases their risk of being pushed into dependence relations as ecocide refugees.

Since, in such scenarios, roving imperialists have substantial negotiating leverage over ecocide

refugees (in that roving imperialists can offer ecocide refugees means of survival; whereas,

ecocide refugees can offer little in return) and as such, are more likely and able to take advantage

and coerce these vulnerable people into inequitable arrangements, e.g. exploitative wage labor

relations.

Thus, this sort of coercive power can lead to social relations and institutions that enable

roving imperialists to accumulate power, privilege, and control to the detriment of ecocide

refugees. Consequently, our case studies of ecosystem destruction produce social conditions ripe

for subsequent exploitative oppression, even if the ecocidal activity were non-exploitative in-

and-of-itself.

5. Powerlessness

Young describes the plight of the powerless as, “inhibition in the development of one’s

capacities, lack of decision-making power in one’s life, and exposure to disrespectful treatment

because of the status one occupies” (Young 1990: 58). Thus, from our prior analysis, it appears

indisputable that in all of the selected key cases and our idealized description of ecocide that

autarkic communities experience powerlessness, because they were prevented from practicing

their cultural traditions and developing capacities necessary for preserving and sustaining their

subsistence lifestyle. Moreover, they never consented nor were they active participants during

the decision-making processes that led to their injury.

The above analysis has shown that our key examples and idealized description of ecocide

fit (at least to some degree) each of Young’s five categories of oppression. But to reiterate as

Young explains, “the presence of any of these five conditions is sufficient for calling a group

oppressed” (Young 1990: 64). Moreover, prior analysis demonstrated that our case studies met

Cudd’s definition of oppression as well. Hence, a compelling case has been made that instances

of ecocide (e.g., those that satisfy our criteria) are fundamentally oppressive.

However, a response to oppression often times implies liberation (i.e., freedom from the

oppressor), instead of the kind of reparative and reconciliatory redress that Transitional Justice is

concerned with. Thus, to further link the harm of ecocide and the plight of ecocide refugees to

the discipline of Transitional Justice it is necessary to justify why reparative and reconciliatory

action is required in these situations -- which will be the focus of the final section of the chapter.

V. Transitional Justice: A Response to State Oppression

The discipline of Transitional Justice represents a particular framework for understanding

and addressing widespread oppression and human rights violations. The United Nations

Secretary General defines Transitional Justice projects as, “the full range of processes and

mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale

past abuses, in order to ensure accountability, serve justice, and achieve reconciliation” (U.N.

2004). As Louise Arbour, the United Nations High Commissioner for Human Rights expounds,

“transitional justice must have the ambition of assisting the transformation of oppressed societies

into free ones by addressing the injustices of the past through measures that will procure an

equitable future” (Arbour 2006).

Accordingly, based on the above descriptions of the discipline, we can summarize the

justification for Transitional Justice as resting on two premises. First, Ruti Teitel’s insight that,

“legacies of state oppression do not simply go away on their accord” (Teitel 2000: 143).

Secondly, Jeremy Waldron’s belief that reparative and reconciliatory measures can be taken in

the present to alter relationships with the past. “There is a sense we can affect the moral

significance of a past event. Even if we cannot alter the action itself we may be able to interfere

with the normal course of its consequences” (Waldron 1992: 7). Thus, Transitional Justice

maintains that to overcome past histories of state oppression necessitates reparative and

reconciliatory redress.

Consequently, for the discipline of Transitional Justice to constitute a reasonably coherent

enterprise, practitioners must establish a set of wrongs under consideration and a set of responses

designed for moving away from these wrongs (i.e., correcting past injustices and deterring future

harms). As previously stated, the set of wrongs Transitional Justice has traditionally focused on

are human rights violations (e.g., genocide, ethnic cleansing, and mass murder). Thus, to

reiterate, Transitional Justice as currently practiced, excludes our paradigm cases of ecocide,

since they are not presently considered human rights violations.

However, as previously argued, our examples result in the same harm (i.e., social death

and loss of control over vital interests) as traditional human rights violations (i.e., genocide).

Thus, our next step in illustrating why Transitional Justice ought to concern itself with the

paradigm cases and similar instances of ecocide fitting our idealized description, is to

demonstrate that the injustice under consideration results from comparable activities to those

generating human rights violations. Essentially, the aim is to draw parallel(s) between activities

Transitional Justice has been traditionally concerned with and the acts causing harm in our

examples.

The analysis is motivated by the hope that comparable harmful activities (i.e., both in

terms of cause and result) ought to be receptive to similar reparative and reconciliatory

measures. In other words, it is not enough simply to show that the oppressive harm we are

considering is of the kind that engenders state responsibility for assisting their citizenry, but to

show that the states themselves behaved in such a way as to trigger the concerns of Transitional

the hope is that undertaking environmental transformative justice measures will illustrate the

centrality of the environment in maintaining ways of life (e.g., in the case studies, environmental

destruction caused cultural death). That may seem obvious, but modernity has traditionally

emphasized the separation of man from nature and the social from the ecological. Accordingly,

the work maintains that it is important to offer a framework of moral suasion designed to woo

non-environmentalists (e.g., traditional humanists) into embracing the moral need to correct

environmental harms. This is in part achieved by providing examples (such as the ones offered in

the preceding sections) that violate our moral sensibilities (i.e., acts that we find indecent,

impious, or repulsive). As Daniel Gilbert, borrowing from Hume, explains, “when people feel

insulted or disgusted, they generally do something about it, such as whacking each other over the

head, or voting…moral emotions are the brain’s call to action” (Gilbert 2006). Thus, in this light,

our examples are designed to trigger a moral response in non-environmentalists (i.e., generate a

sense of the moral wrongness of these sorts of activities), which will hopefully steer them

towards recognizing the centrality of ecosystems in our lives. This perspective change is vital,

since as will be demonstrated in subsequent chapters, a key feature of environmental

transformative justice is striving to prevent such harms from occurring in the first place (e.g.,

embracing Transitional Justice’s “never again” mantra). And it will be argued that realizing this

preventative aim, likely requires that the broader society accept an ecosocial (i.e. breaking down

the social and ecological divide by recognizing that all societies requires an ecological base)

understanding of communities’ relationship and place in the world. Thus, achieving

environmental transformative justice, in many ways depends on expanding the ecosocial

perspective to as many actors as possible (i.e., the environmental transformative justice process

requires winning over non-environmentalists). Finally, once/if the ecosocial perspective is fully

realized preventing ecological harm will be a matter of social concern in-and-of-itself (i.e., just

what traditional environmentalists wanted).

Justice. As such, the goal is to demonstrate that case(s) of ecocide (e.g., those fitting our

idealized narrative) are caused by the type of state activity that Transitional Justice is concerned

with; which will hopefully, compel the discipline to involve itself in preventing, repairing,

mitigating, and correcting for these harms.

Consequently, the remainder of the chapter will attempt to prove that our paradigm cases

of ecocide are suitable candidates for Transitional Justice’s reparative and reconciliatory

measures. The dissertation intends to achieve this by demonstrating that traditional human rights

violations (e.g., those that represent the current focus of Transitional Justice) and injustices of

ecocide in our examples stem from comparable harmful activities.

It is important to emphasize that Transitional Justice is a discipline that embodies a

radical departure from the history of inter-and-intrastate relations; in that for the first time there

exists concerted global effort and widespread recognition that state actors responsible for grave

injustices ought to be held accountable. Essentially, Transitional Justice’s range of concern (i.e.,

the activities actors ought to be held accountable for) centers on state oppression responsible for

generating human rights violations.

However, in canvassing the field it becomes clear that there exist various forms of state

oppression, which in practice, have qualified as matters of Transitional Justice concern.

Nonetheless, for the sake of conceptual clarity, we can sort the varieties of state oppression that

Transitional Justice has considered germane into three distinct categories: (1) direct state

oppression; (2) state sanctioned, endorsed, and sponsored oppression, and (3) negligent state

oppression. Thus, do the acts generating ecocide in our case studies satisfy these levels of state

oppression?93

A. Direct State Oppression

Transitional Justice early in its development focused on oppression perpetrated directly

by strong state actors. A clear example of this would be the Allies’ prosecution (e.g., the

Nuremberg Trials) of Nazi officials responsible for orchestrating the bureaucratized and

industrialized murder of millions during the Holocaust. Horowitz describes this sort of direct

state oppression as, “a systemic destruction of innocent people by a state bureaucratic apparatus”

(Horowitz 1976: 18).

Obviously, none of the examples of ecocide we examined include loss anywhere near the

magnitude of state-governed tragedies like the Holocaust or Stalin’s Great Purges (1936-1938).

Nonetheless, our research does include instances of direct state action responsible for harm. For

instance, it seems straightforward that the wrongs experienced by northern Cree in the wake of

the James Bay Damming Project directly resulted from state action, i.e., Quebec-Hydro is a

ancillary, since all of the case studies include clearly defined state actors (e.g., the Colombian,

Australian, Canadian, and British governments).

93 In the subsequent section, the work will definitively demonstrate that our cases of ecocide

satisfy classic theories of oppression, but for now we will simply assume that the harms in our

examples were oppressive.

public utility (i.e., a state bureaucratic apparatus) whose actions (i.e., constructing dams) directly

caused the social death of indigenous northern Cree (i.e., systemic destruction of an innocent

people).

However, Quebec-Hydro did not intend to oppress the Cree. Accordingly, it seems

normatively hyperbolic to compare Quebec-Hydro’s activity (or the state activity in any of our

case studies; since, our criterion excludes environmental harms committed instrumentally to

further traditional crimes against humanity) to the atrocities committed by the Nazis or other

intentionally perpetrated state genocides. As such, we need to discern other form(s) of state

oppression, which Transitional Justice embraces as legitimate matter(s) of concern that better

mirror our examples of ecocide.

B. Indirect State Oppression

With this aim in mind, it is important to highlight that Transitional Justice’s scope

extends beyond direct state action, to include indirect forms of state oppression. For instance,

examples of Transitional Justice’s expanded focus include the International Criminal Tribunal for

Rwanda and Gacaca courts’ prosecution of the interahamwe (i.e., Hutu civilian groups that killed

Tutsi) after the Rwandan genocide or the International Criminal Court’s investigation of

atrocities committed by the janjaweed (i.e., nomadic Sudanese Arabs that targeted non-Arab

sedentary communities) in Darfur. In these and similar examples, Transitional Justice

practitioners and institutions exhibit responsiveness and concern with injustices perpetrated by

state sponsored militias, gangs, and civilian movements, rather than legally sanctioned state

bureaucratic apparatuses (e.g. military, police force, officially authorized agents, etc.).

Such instances of indirect state wrongs are somewhat comparable in form to acts of

oppression in our examples. For instance, the direct cause of Wayúu suffering was El Cerrejon

Mining (i.e., a fully privatized operation as of 2000) not the Colombian government.

Nevertheless, just like with the janjaweed or interahamwe the government endorsed, applauded,

and permitted the non-state actor’s (e.g., El Cerrejon Mining) activities. Thus, the state (e.g., the

Colombian government) had an indirect role in perpetuating oppression.

However, the above analysis comparing our cases of ecocide to instances of Transitional

Justice concerned with indirect state oppression, runs into difficulty; first and foremost of which,

is the fact that in each of the cases of ecocide under consideration, state support was not designed

to endorse oppression, but instead, to further state interests (e.g., economic growth, development,

security, etc.). Thus, there appears to be a clear normative difference between state sponsored

activity deliberately planned to oppress group(s) (e.g., supporting violent militias) and accidental

harm (e.g., cultural loss) resulting from environmental destruction (i.e., what occurred in our

case studies). Consequently, these forms of indirect state oppression are ill suited for situating

our paradigm cases and idealized description of ecocide within the Transitional Justice

framework.

C. Negligent State Oppression

Fortunately for our purposes, Transitional Justice concerns have expanded to include

negligent state activity (or inactivity) responsible for failing to protect citizens from grave harm.

For instance, a vivid example of state negligence constituting a matter of concern for

Transitional Justice is the Casino Royale fire (2011) that left 52 people dead (Rivera 2014).

In this case, the Human Rights Commission of the State of Nuevo ruled (relying on

Transitional Justice principles and jurisprudence from international tribunals, such as the

InterAmerican Court of Human Rights) that the Mexican government did not meet its obligation

to guard its citizens from human rights violations:

The Commission arrived at the conclusion that several human rights violations had taken

place (particularly regarding the rights to life, personal integrity and working conditions),

all of which were associated with the State’s duty to protect its citizens from human rights

abuses, including from those at the hands of non-State actors. (Rivera 2014: 72)

The court determined that the state’s failure to follow safety protocol made the cartel’s

illegal act of arson far more destructive than it otherwise would have been. Thus, the state did

not satisfy its due diligence to protect its citizens. Obviously, the Mexican government did not

intend any harm (either directly or indirectly). Nevertheless, the state was found culpable for

injuries resulting from breeching its duty to prevent grave injustices.

The Commission’s determination in the Casino Royale case, describes a type of state

injustice mirroring acts or omissions responsible for wrongs in our case studies of ecocide. For

instance, the Afro-Colombians, Anangu, Wayúu, and Cree all suffered grave harm because their

respective countries governments failed to consider these group’s special vulnerabilities to the

prescribed acts of environmental destruction, e.g., the state forgetting to post warning signs in

the indigenous group’s language; they failed to consider how ecosystem alterations might

undermine communities’ traditional way of life and subsistence practices; they failed to conduct

adequate surveillance to ensure all members of the community were out of harm’s way, etc.

Furthermore, the Commission’s response to the injustice offers insight into the range of

reparatory and reconciliatory measures suitable for combating oppressive state negligence:

The Commission deemed it prudent to award economic reparation for lost earnings and

the subsequent damage (particularly funerary costs and medical and psychological

expenses), rehabilitation measures (including medical, psychological or psychiatric

treatment), satisfaction (including the verification of the facts and issuing a public

apology, starting the criminal and administrative procedures against the public officials and

other non-State actors whose acts or omissions contributed to the human rights violation, and

the construction of a monument in memory of the deceased and those injured in the fire)

and guarantees of non-repetition. This recommendation especially focused on alleviating

some of the victims’ suffering, which would be accomplished through the recognition of

public truth and bringing those directly and indirectly responsible to justice. (Rivera 2014:

73-74)

The significance of the Commission’s recommendation in Casino Royale is that it

emphasizes that adequate responses to instances of pervasive state negligence resulting in human

rights violations require simultaneously confronting impunity, seeking redress, and preventing

recurrence of wrongs, i.e., pursuing Transitional Justice. However, the Commission could have

recommended dealing with the situation through more narrowly tailored measures (e.g., only

pursuing criminal proceedings or welfare assistance) instead of advocating a multipronged

approach.

Nevertheless, the Commission opted against implementing singular solutions because it

rightly concluded (at least per Transitional Justice) that enacting narrow measures would

forestall reconciliation and reparations, in that not all elements required of justice would be met

and the community would remain vulnerable to the reoccurrence of comparable harm(s).

Essentially, the Commission held that in cases of negligent state oppression resulting in human

rights violations, justice compels that the state examine what happened and why (e.g., using truth

commissions and/or social inquiries); propose plans and policy to stop similar violations from

occurring in the future (e.g., through legislation and/or constitutional amendment); acknowledge

the violations as a means of restoring socio-political commitment to important societal values

(e.g., undertaking public apology and/or memorialization); hold those responsible to account

(e.g., pursing criminal proceedings, lustration, public censure, etc.), and aid victims (e.g.,

providing social services, compensation, and/or welfare assistance).

Accordingly, it seems plausible to conclude that similar responses mirroring the

Commission’s recommendation in Casino Royale are appropriate to our and similar cases of

ecocide, since the acts causing harm are comparable (i.e., negligent state oppression) and the

resulting harm is of equivalent magnitude (i.e., social death and loss of vital interests). For

instance, it seems uncontroversial that just as in the Casino Royale case, our victims (e.g.,

AfroColombians, Anangu, Wayúu, and Cree) deserve reconciliatory redress: i.e., compensation

for harms suffered to (re)affirm their dignity as human beings; exploration into why massive

social death was allowed to occur; assurance that actions are underway to prevent such harms

from happening in the future (i.e., a commitment to the safety of all citizens); retribution that

negligent actors (i.e., those that failed to meet their duty of care) are held to account, and

assistance to overcome trauma and resulting difficulties (i.e., losing their way of life and means

of subsistence).

Consequently, after reviewing the above list of goals, it is easy to grasp why singularly

focused approaches (e.g., criminal proceedings or welfare assistance) would be inadequate for

achieving justice in our examples. For instance, focusing strictly on retributive censure of

negligent actors obscures the fact that the environmental harm(s) under consideration were

intentional, i.e., that the state (and more broadly mainstream society) tolerates and promotes

ecosystem destruction. Hence, such a limited response ignores the need to alter the root cause of

the problem (i.e., prevailing norms, values, and everyday practices) and realistically guarantees

that comparable harm(s) will occur in the future. Thus, only repudiating select actors for failing

to meet their duty of care, while acquiescing and accepting environmental loss as “business as

usual” undermines Transitional Justice’s “never again” mantra.

Likewise, if practitioners were to take another narrow approach and focus strictly on

providing material aid to victims (i.e., ensuring survivors have adequate food, water, clothes,

shelter, medical care, etc.), then we can readily see that key components of justice will be

ignored. Obviously, victims should not be left destitute and starving in their ruined habitat, but

justice also requires considering why they are in this position in the first place.

Instead of simply alleviating immediate suffering and treating problematic symptoms,

justice entails understanding past mistakes and averting future complications, i.e., failing to

consider broader social structures may obscure effective means of mitigating, abating, and

correcting harms. Furthermore, social policy limited to material aid, treats victims as passive,

ignores their agency, and offers them little role in overcoming their difficulties, which may

further denigrate their autonomy and sense of self-respect.

Nevertheless, determining the best course of action for navigating these various concerns

presents innumerable challenge. But at least at present, Transitional Justice offers the most

theoretically well developed and successfully employed paradigm for considering,

implementing, and balancing the above reparative and reconciliatory interests in the wake of

grave social wrongs. Consequently, there are prudential and substantive benefits validating the

claim that Transitional Justice offers the most effective framework for responding to the injustice

of ecocide, i.e., achieving environmental transformative justice.

Fortunately, the Commission’s determination in Casino Royale that human rights

violations produced through state negligence, require a multipronged reparative and

reconciliatory response, offers compelling support to the thesis that the Transitional Justice

framework can reasonably be applied to the types of state activity (or inaction) that led to harm

in our case studies. In fact, since our cases of ecocide lack a supervening malevolent actor (e.g.,

the cartel), it seems even easier to justify drawing a connection between negligent state activity

and resulting harms.

D. Conclusion

The chapter has attempted to illustrate that there are instances of ecocide that occur

independently from the commission of intentional crimes against humanity, which nonetheless,

are comparable in normatively relevant ways to established, recognized, documented, and

accepted subjects of Transitional Justice concern; in that the acts causing the harm are

comparable (i.e., negligent state oppression) and the harm itself is comparable (i.e., social death

and loss of vital interests). Consequently in achieving this aim, a strong case has been presented

that to further justice (i.e., overcome injustice), victims of these and similar instances of ecocide

ought to receive reparatory and reconciliatory attention from within the Transitional Justice

framework. At least, it seems the burden of proof has shifted, so that those who wish to deny

including our paradigm cases and idealized description of ecocide within the Transitional Justice

framework need to provide justification for the exclusion.

In summary, here is the argument thus far. As Young, Cudd, and likely all political

philosophers agree, “oppression claims are themselves prima facie moral claims for remedy or

redress” (Cudd 2006: 129). Thus, normatively, once a practice has been established as

oppressive, the moral case for opposing, resisting, and correcting the wrongs has already been

made. Moreover, since the oppression results from similar practices (e.g., negligent state

activity) and causes comparable harm (e.g., social death and loss of vital interests) to traditional

topics of Transitional Justice, then it follows that our paradigm cases and idealized description of

ecocide represent suitable candidates for garnering Transitional Justice’s attention, i.e., that the

discipline ought to expand to cover the harm of ecocide (e.g., in these and similar cases); beyond

any instrumental role the environmental destruction may play in advancing genocide, ethnic

cleansing, mass murder, etc.

But before we can begin analyzing how Transitional Justice mechanisms can be enlisted

to repair and reconcile the injuries of ecocide (i.e., delineate the aims and methods for achieving

environmental transformative justice); we must first discuss the topics of responsibility,

culpability, and complicity to delineate who is morally obligated to contribute, assist, and further

post-ecocide environmental transformative justice. As such, exploring these topics will be the

subject of analysis in the next chapter.

can be applied in our examples will be the topic of analysis in subsequent chapters, but for now I

hope it seems plausible that such mechanisms can assist victims of ecocide.

CHAPTER TWO

Who is Responsible for Ecocide? Conceptualizing Responsibility for Ecocide

I. Overview Bridging Responsibility in Transitional Justice and Environmentalism

The last chapter recommended expanding the Transitional Justice framework to cover

cases of ecocide that were committed intentionally (i.e., with the aim of benefiting the acting

group) and resulted in the loss of vital interests (i.e., causing partial or complete social death) of

non-consenting cultural group(s). As argued, a key reason supporting the inclusion of these sorts

of grave environmental harms within the Transitional Justice paradigm is that they involve some

degree of state oppression (e.g., direct, indirect, or negligent). Accordingly, it seems

uncontroversial that the state must play a central role in providing reconciliatory redress for these

injustices.

However, limiting our conception of responsibility for ecocide to states or state actors

seems misguided, in that it would almost certainly exclude many relevant causal factors and

culpable actors from analysis. Such a result is problematic because (as will be argued)

establishing the full class of actors responsible for overcoming these wrongs bolsters the

prospects of achieving successful reparative and reconciliatory outcomes. In this light, the work

aims to avoid the mistake of overly or exclusively focusing on state responsibility at the expense

of ignoring other actors (e.g., individuals, corporations, intergovernmental organizations, etc.)

potential role in generating ecocide.

International Monetary Fund (IMF)), by promoting economic growth, encourage countries to

engage in deforestation and the high use of fossil fuels, both activities which lead to climate

change [and environmental harms more generally]” (Caney 2005: 755). Moreover, another

problem with viewing states as the sole locus of responsibility for ecocide is that while it may

seem justifiable to hold states accountable for their self-governing decisions; it is nevertheless

true, that a substantial amount of environmental harm is committed by illegal and non-state

sanctioned activity perpetrated by individuals or corporations, i.e., harm(s) caused by rogue

actor(s) that the state did not endorse, support, approve, or authorize. Additionally, it is important

to recognize the role of multinational corporations, wealthy individuals, foreign powers, and

international institutions in shaping state policy through their ability to lobby, pressure, coerce,

capture, or control domestic legislation and regulatory processes. As such, all of these factors

express the diminishing role of state sovereignty; and thus, they offer insight into why focusing

only on state responsibility for ecocide is inadequate. In summary, such a state-centric framing

fails to account for at minimum two relevant levels of analysis. First, it ignores the impact of

international institutions and global systems that determine state policy at a macro-level.

Secondly, it fails to account for environmental harms resulting from the activities of non-state

actors (e.g., individuals and corporations) operating independent of or undermining state

authority at a micro-level.

Consequently, this chapter endeavors to develop an expansive account of responsibility

that can be applied to our paradigm cases of ecocide. The goal is that an effective delineation

will assist subsequent chapters in apportioning actors’ requisite obligations (i.e., necessary aims,

measures, and mechanisms) for achieving environmental transformative justice.

Ideally, the conception of responsibility developed ought to be persuasive, politically

useful, reasonably acceptable to the parties involved, and serve to counter harmful and obscuring

ideologies that disguise accountability (both over-inclusively and under-inclusively) for ecocide.

To achieve these aims, the chapter will proceed in two sections: (1) summarize the conception of

responsibility traditionally employed in both Transitional Justice and environmentalism, so as to

discern a common understanding of responsibility that satisfies both disciplines;102 (2) offer a

hypothetical instance of ecocide that fulfills all our criteria (i.e., from the last chapter)103 as a

means of testing a proposed theory of responsibility designed to delineate classes of actors

answerable (e.g., morally, legally, politically, etc.) for repairing and reconciling the harm that

broadly meets the goals of both disciplines.

In many ways this work strives to serve as a bridge between Transitional Justice and

environmentalism; two disciplines that have hitherto not engaged and communicated with each

other. In this light, it is helpful to discern similarities and differences in each discipline’s

person. He always maintained that the exceptional winter storms were responsible for the loss of

the ship, but in the legal proceedings brought against him he was found criminally responsible

for his negligent conduct, and in separate civil proceedings he was held legally responsible for

the loss of life and property. He is still alive, and he is morally responsible for the deaths of

many women and children” (Hart 1968: 211). Thus, our initial use of the term relies on a

roughand-ready folk conception, which will hopefully be further refined as we delve into the

respective disciplines’ employment of the concept.

102 The term ‘discipline’ is used loosely in the chapter; since, as will be discussed

subsequently, it is unclear if environmentalism represents a coherent discipline.

103 The need for greater conceptual freedom in stipulating details while examining theories

of responsibility, justifies why it is beneficial to analyze hypothetical scenario(s) instead

exclusively limiting ourselves to the actual facts of the real-world examples that we explored

last chapter.

respective positions and practices regarding the allocation of responsibility. Ultimately, the work

contends that both disciplines (after having taken rather different routes) have each developed

comparable notions of responsibility.

Thus, the goal of this section is to illustrate key features undergirding the notion of

responsibility that both disciplines employ in achieving their desired objectives. The hope is that

greater conceptual integration will serve to facilitate each discipline’s ability to draw upon and

utilize potentially valuable conceptual insights and practical tools from the other when

confronting ecocide.

To summarize, the chapter aims to demonstrate that both disciplines have settled on an

understanding of responsibility that has three central components. First, the requisite notion of

responsibility must be both backward (retrospective) and forward (prospective) looking.

Backward looking in that it is able to hold actor(s) accountable (e.g., morally, politically, legally,

etc.) for their deed(s) that are broadly construed to include both action and inaction.106 Forward

looking in that it is able to discern actor/actors’ obligations towards particular object(s),

relation(s), and end(s) (e.g., a referee’s responsibility is to call a fair game).107 Secondly, both

disciplines benefit from utilizing a conception of responsibility that is able to hold actors both

aggregately and collectively answerable and responsive;108 while concurrently, maintaining

mechanisms for distinguishing and differentiating degrees, levels, and kinds of culpabilities,

accountabilities, duties, and obligations between them. Finally, the notion of responsibility

107 In this sense, for an actor to be responsible requires that: (1) an actor must be able to

knowingly cause a certain effect; (2) an actor must reasonably deem these effects beneficial, and

(3) an actor must have been able to act otherwise, i.e., not achieve the desired effects. For

instance, Kyle Whyte eloquently defines proscriptive responsibility as, “the reciprocal (though

not necessarily equal) attitudes and patterns of behavior that are expected by and of various

parties by virtue of the different roles that each may be understood to play in a relationship.

Elders may have responsibilities to mentor youth through passing on wisdom; younger

generations are, in turn, responsible for learning actively from their elders. A community may

have a responsibility to care for sturgeon habitat; sturgeon, in turn, may provide food and may

even be expected to protect wild rice and the fishery itself” (Whyte 2013: 519).

108 For clarificatory purposes it is helpful to briefly explain the difference between

aggregative (the concept is also sometimes referred to as shared, summative, or distributed

responsibility in the social ontology literature) versus collective (the concept is also sometimes

referred to as group or joint responsibility in the social ontology literature) responsibility.

Essentially, ‘aggregate responsibility’ is an individualist notion that distributes responsibility to

each of the members that comprise the entity under discussion. So, saying “we are responsible”

in this sense is like saying, “we have red hair”; in that saying, “we have red hair” means that I

have red hair and you have red hair, just as “we are responsible” in this sense means I am

responsible, and you are responsible. Whereas, ‘collective responsibility’ is non-distributional, it

is collective in a stronger sense. For instance, saying, “we are responsible” in this sense is like

saying, “we surrounded the castle”; “we surrounded the castle” does not mean that I surrounded

the castle and you surrounded the castle; it is not distributive. And the same for “we are

responsible” in the collective sense. As such, in cases of collective responsibility, responsibility

may not confer to individual members, in fact sometimes collectives can be responsible for

something, even though none of the members comprising the collective bear any responsibility.

For instance, imagine a scenario in which a mine that a corporation excavated eighty years ago,

presently collapses and causes an avalanche. Furthermore, the corporation destroyed all their

records and information pertaining to the mine over sixty years ago. In such a scenario, none of

the current employees or stakeholders of the corporation are personally responsible for the

avalanche because none of them were involved with the initial excavation or destruction of the

relevant information that would have informed them of an impending crisis that required their

intervention; but yet, the corporation would still be held collectively liable for harm.

must be socially capacious, in that the categories and kinds of social-entities included as

potential bearers of responsibility is expansive (e.g., including individual(s), corporation(s),

agency(ies), community(ies), institution(s), state(s), interstate organization(s), global network(s),

etc.).110

that caused environmental destruction with state permission). Furthermore, holding a groupagent

collectively responsible does not foreclose the prospects of piercing the group-agent itself and

concurrently allocating aggregative responsibility to individual members comprising the group.

110As will be discussed, entities can be held responsible in various ways. But for the purposes of

this work, only entities that constitute group-agents can be held collectively responsible. As such,

it is necessary to specify what distinguishes a group-agent from other socio-ontological

arrangements. Hence, below is a brief taxonomy of socio-ontological arrangements designed to

illustrate the difference between sets, amalgamations, collectives and groups. First, ‘sets’ are

non-morally relevant grouping of individuals, e.g., redheads, those born on May 26th, everyone

who sneezed within the past minute. Such groupings are not appropriate sites of collective or

aggregative responsibility. For a comparable conceptualization, see Peter French’s discussion of,

“mere collections of people” (French 1984: 5). Next ‘amalgamations’ are individuals in direct

contact with each other due to some immediate circumstance, e.g., the survivors of a plane crash,

people (customers, chefs, waiters, the owner, etc.) in a restaurant an hour before closing, patrons

in a movie theatre. Such groupings are not appropriate cites of collective responsibility. But,

under some circumstances the actors may share aggregative responsibility to organize

themselves into a ‘random collective’ to achieve some end. For instance, imagine an

amalgamation of random passersby coming upon a man stuck in an abandoned well, they realize

that he will drown if they do not help him up; but they disagree on how to achieve this. As they

stand around arguing about what to do, he drowns. In such a case it is obvious that something

ought to have been done. Nevertheless, we would not hold the amalgamation in-and-of-itself

responsible, but would instead, hold each actor responsible for failing to come together to assist.

For a comparable conceptualization, see Virginia Held’s discussion of, “random collectives”

(Held 1970: 471-481). Whereas, ‘collectives’ are collections of individuals that mutually enter

into an agreement to achieve some end, e.g., going on a walk together, playing tennis, helping a

friend move into a new apartment, etc. Essentially, at minimum collective formation requires A

and B to commit to E. Thus, there are two commitments: A committing to cooperate with B to

achieve E and B committing to A to achieve E. But importantly, collectives lack permanency and

dissolve once the commitment is satisfied. As such, the responsibility for harm caused during the

course of the commitment is shared in aggregate by both A and B, but such arrangements do not

generate collective responsibility – which unfortunately, is somewhat confusing because of the

name. For a comparable conceptualization, see Stephanie Collins’ discussion of, “end-oriented

groups” (Collins 2017: 588-590). Lastly, ‘groups’ are agents in their own right in that they are

group-agents that come into being when individuals intend to establish an ongoing institution

that can exist even if the composition of the members change, e.g., companies, corporations,

clubs. Essentially, ‘groups’ form when A commits to B to form an identifiable subject E that can

exist and operate independently of A or B’s involvement. In this case if a harm is caused during

the course of group activity, the individual members may share responsibility; but there emerges

Before we delve into a summary of each discipline’s respective path to the above conception of

responsibility, it is helpful to emphasize that it is unsurprising that both have settled on similar

views. Since, as will be shown, they are both responding to comparable, overlapping, and

interrelated global trends and developments, e.g., greater interconnectivity between peoples and

places, weakening sovereignty of the nation-state, growing asymmetry

(diminishing parity) concerning particular peoples, institutions, and states’ worldwide influence.

But it is also important to highlight that in practice and theory, both Transitional Justice and

environmentalism have played roles in substantively and epistemically producing these shifts, in

that each has effectively advocated for changing our perception, understanding, orientation,

behavior, and relation to each other and the world.

A. Responsibility in Transitional Justice

Historically, Transitional Justice focused predominately on individual responsibility. The

discipline’s nascent orientation becomes clear after observing the Allies’ decision at Nuremberg

and Tokyo War Trials to prosecute individuals for war crimes, crimes against humanity, and

crimes of aggression; instead of holding Germany, Japan, the NAZI regime, or the Japanese

Empire collectively responsible for the atrocities committed during WWII. As Britain’s Chief

Prosecutor at Nuremburg, Sir Hartely Shawcross advocated, “there can be no reconciliation

unless individual guilt for the appalling crimes of the last few years replaces the pernicious

theory of collective guilt on which so much racial hatred hangs” (Shawcross 1996: A17).

a sense of collective responsibility as well, which applies to the group itself as a single, unified,

moral agent. For a comparable conceptualization, see Margaret Gilbert’s discussion of “plural

subjects” (Gilbert 1989, 2000, and 2006). As Christian List and Philip Pettit explain, groups can

constitute moral agents if they, “have representational states, motivational states, and a capacity

to process them and act on their basis” (List and Pettit 2011: 162).

It is significant to highlight that the Allies’ decision to pursue individual responsibility

was groundbreaking, as traditionally international law was regarded as limited to relations

between states as group-agents. For instance, James Brierly in his work, The Law of Nations,

classically defined international law as, “the body of rules and principles of action, which are

binding upon civilized states in their relations with one another” (Brierly 1963: 1).

Thus, pursuant to the classical model, states rather than individuals (i.e., natural persons)

would be held accountable for violations of international law, e.g., if a battalion from state-A

violated international law in state-B, state-B would seek redress collectively against state-A,

instead of proceeding against the individual members of the battalion. Essentially, this example

illustrates that while it is causally necessary that states act through individuals (e.g., their agents,

representatives, and citizens); customarily, the legal notion of state responsibility conveyed the

perception that states act themselves as social bodies (group-agents), not through the aggregated

acts of individuals comprising them.

Nevertheless, in the aftermath of WWI this classical view of international law proved

problematic. To summarize at the Treaty of Versailles, the Allies employed the then orthodox

understanding of international law and held Germany collectively responsible for, “violation of

established laws and customs of war and the elementary laws of humanity” (1919). But this

decision proved costly, in that many historians believe that the “war guilt” clause, (i.e., decreeing

that Germany was responsible for the damages and losses suffered during the war) and the

imposition of levies and sanctions on the German people as retributive compensation for harm

suffered, contributed to the rise and success of the NAZI party precipitating WWII.

Consequently, after WWII, the Allies wanting to avoid making the same mistake opted to

eschew collective guilt (i.e., declaring an entire state or people responsible) and instead

embraced a legal response centered on condemning the evils of the period by prosecuting

individuals for violating international law. For instance, at Nuremberg it was famously

pronounced, “crimes against international law are committed by men, not by abstract entities”

(1945).

The Allies’ decision to target individual actors in the wake of the atrocities of WWII

instead of whole states or peoples proved successful, in that it is often credited as a key factor in

the rapid, effective, and lasting restoration and reintegration of Germany and Japan into the

international community. Thus, in light of this accomplishment, Transitional Justice

wholeheartedly advocated and implemented policy-approaches that remained dedicated to

pursuing individual responsibility as the preferred means of overcoming legacies of historical

injustice: As Saira Mohamed narrates in her highly informative work on the history of collective

responsibility in Transitional Justice:

In the trials confronting the legacies of repressive military rule in Latin America in the

1980s; the creation of the international tribunals addressing the crimes committed in the former

Yugoslavia and Rwanda in the 1990s; the establishment of South Africa's ambitious and

groundbreaking Truth and Reconciliation Commission in 1995; and the adoption of the Rome

Statute of the International Criminal Court (‘ICC’) in 1998, jurists, policymakers, and

human rights advocates have emphasized the importance of focusing attention on the

actions of individuals, and have cautioned against assigning blame for atrocities to groups or

states. (Mohamed 2009: 328)

1. TJ and the Return of Collective Responsibility

However recently, the discipline’s hegemonic acceptance that grave injustices are best

overcome through focusing strictly on individual over collective responsibility has come under

scrutiny. Ruti Teitel succinctly problematizes the choice to ignore collective responsibility,

explaining that, “criminal justice primarily seeks to establish individual responsibility for

wrongdoing, but the tyranny of the modern bureaucratic state diffuses responsibility throughout

the polity; thus, the ordinary workings of criminal justice are inapposite” (Teitel 2000: 149).

Consequently, Teitel believes Transitional Justice ought to acknowledge that, “the massive and

systemic wrongdoing that is particularly characteristic of modern repression implies a

recognition of the mix of individual and collective responsibility” (Teitel 2000: 217).

Essentially, Teitel’s insight is that grave injustices are often systemic and pervasive; thus,

relying on a conventional understanding of individual responsibility is inadequate or unsuitable

for fully grasping, confronting, and remedying the scope and scale of the wrongs under

consideration. He argues that Transitional Justice can better overcome injustice by accepting a

more diffuse and comprehensive view of responsibility (i.e., one that is capable of capturing the

socio-political background and structural forms generating much contemporary oppression),

instead of limiting the analysis to individual agency.

Recently, Transitional Justice has heeded this insight and begun moving in precisely this

direction, as vividly evidenced by the International Court of Justice’s 2007 ruling that countries

as well as individuals could be prosecuted for genocide. Nevertheless, as Mohamed explains

there has been ample backlash against, “the ICJ’s conclusion that the Genocide Convention

obligates states not to commit genocide and that the ICJ has jurisdiction to decide the

responsibility of a state for committing genocide aroused significant criticism” (Mohamed 2009:

349).

Reservations against the Court’s decision, affirming that states can be found collectively

responsible, stem from the fact that not all citizens of even the most deplorable nation(s) engage

in morally reprehensible activity (e.g., murder, rape, torture, etc.).115 Thus, critics argue it would

be unjust to hold uninvolved actors that happen to reside in a state responsible for atrocities they

did not commit and maintain that it is wiser to remain focused on individual malfeasances (i.e.,

continuing the practice of determining guilt through traditional criminal trials), as means of

declaring the innocence of the remaining members of the society (i.e., those that did not partake

in the commission of grave wrongs).

The benefit of such an approach (i.e., stressing the need to delineate between the guilty

and innocent) represents a vital step in the transitional process in that removing, punishing, and

sanctioning bad actors can break cycles of violence, hatred, and animosity between groups by

diminishing the victimized group’s need for vengeance; while concurrently, increasing the

likelihood that the remaining members of the community can work together to heal.116 As Jane

Stromseth asserts, a core value and aim of individually focused criminal proceedings is that,

July 1995), but that there was not enough evidence attributing the genocide to Serbia despite the

fact that the Court confirmed that it was authorized to find states liable ((SaCouto 2007: 2). 115

For instance, during the Rwandan genocide it is estimated that there were around 200,000

perpetrators (i.e., “any person who participated in an attack against a civilian in order to kill or to

inflict serious injury on that civilian”) in a population of over seven million, in what is widely

considered the highest per capita perpetrator rate in modern history (Straus 2004: 87). 116

Additionally, prosecuting those responsible diminishes the need for vengeance from the

victimized group and as such can assist in breaking the cycle of violence between historical

antagonists. As Aryeh Neier states, “if those directly responsible are tried and punished, the

burden of blame will not be carried indiscriminately by members of an entire ethnic group.

Culpability will not be passed down from generation to generation” (Neier 1998: 211).

“[they] remove the stain of impunity from traumatized societies” (Stromseth 2007: 253).

Despite these important goals, Transitional Justice scholars have begun to recognize

shortcomings (i.e., in regard to achieving justice) that arise from wedding the discipline to an

exclusively individualistic conception of responsibility. For example, Transitional Justice has

long emphasized the importance of truth and truth-telling as a vital aspect of the reparative and

reconciliatory process. But individual criminal trials are often unable to paint a complete picture

of events, produce shortages of truth, and limit truth-telling in part because their traditional

focus, design, and procedure, readily overlooks delving into the structural background elements

driving the actor’s motivation(s), decision-making process(es), and behavior(s).

For instance, individual trials fail to account for the actions (or inactions) of those who

stood by and watched while atrocities occurred or those who legally supported, abetted, and

elected leaders calling for the commission of such harms. As Laurel Fletcher and Harvey

Weinstein state, “individualized guilt may contribute to a myth of collective innocence”

(Fletcher and Weinstein 2002: 580).

Succinctly, Thomas Franck clearly expresses the central issue caused by maintaining

Transitional Justice’s restrictive focus on individual liability. “Genocide is a hydra-headed

monster. It warrants a multifaceted response. The heralded advent of individual liability should

not cloud our understanding of the continued importance of state responsibility” (Franck 2007:

573). Accordingly, Mark Drumbl bemoans moral-gaps resulting from ignoring the insight that

mass atrocities require mass action. “The deliberate choice by international criminal justice

institutions to selectively blame a handful of individuals . . . erases . . . the involvement of

ordinary [persons]…[thus] leads to a retributive shortfall, insofar as only a few people receive

their just deserts, while many powerful states and organizations avoid accountability” (Drumbl

2005: 1314).

The above quotes express Transitional Justice’s growing recognition that pervasive and

systemic human rights violations generally involve state apparatuses, bureaucratic machinery,

and social resources necessary for their commission. Consequently, to better reveal the complex

bureaucracy, massive scale, and powerful organizational structures that facilitate widespread

human rights violations; it is often crucial to focus on collective responsibility of the state or

state-institutions, rather than limiting the analysis to individual guilt. Hence in this light, the

entire polity is directly accountable when states authorize, permit, or fail to prevent grave

atrocities from occurring – which was a key point of emphasis in the preceding chapter.

Additionally, because the commonly held democratic view that states no longer own

individual(s), but that individual(s) jointly own, manage, and operate states, there has been

growing recognition of the need for expanding aggregative responsibility for graves harms in

Transitional Justice settings. For instance, Michael Walzer endorses this insight, asserting that,

“citizenship is common destiny, and no one, not even [the regime’s] opponents...can escape the

effects of a bad regime, an ambitious or fanatic leadership, or an overreaching nationalism”

(Walzer 1977: 297).

Or as Franck explains, while defending the need for greater shared responsibility in

Transitional settings, “when a state deliberately leads, helps, trains, arms, clothes, pays and

inspires those who do commit genocide, then, while the passive citizenry does not share the

perpetrators’ guilt, it does share responsibility for the enormity of what was done in the

citizenry’s name and the citizens’ responsibility to help make amends” (Franck 2007: 572-573).

Thus, the argument maintains that it is in virtue of the privilege of citizenship and being a

member of a political community that all citizens share some aggregative responsibility for when

states commit egregious wrongs in their name.

Accordingly, Transitional Justice has begun to appreciate that it will gain a more

complete understanding of the truth, provide more effective redress and reconciliation, and better

prevent similar harms from occurring in the future by embracing a model of responsibility that is

readily amenable to including the full range of actors and collective processes that generate grave

harms. Thus, there has been growing emphasis on the need to expand beyond a legalistic

conception of individual guilt and embrace models of shared and collective responsibility.

2. TJ and Common But Differentiated Responsibility

Obviously, incorporating collective and shared responsibility into the Transitional Justice

framework is not meant to replace or eliminate holding particular actors guilty for mass

statesanctioned atrocities; instead, the inclusion of collective and shared responsibility ought to

function in conjunction with traditional individual liability to better support and facilitate the

discipline’s aims. As such, the notion of collective and shared responsibility employed by

Transitional Justice should not hold all actors equally accountable for grave injustices, i.e., the

discipline requires mechanisms for differentiating degrees of culpability, blame, duties, and

obligations between perpetrators, abettors, supporters, spectators, dissenters, resistors, etc.

Consequently, Transitional Justice’s growing acceptance and willingness to employ norms of

collective and shared accountability, while maintaining a strong tradition of prosecuting

individual actors, demonstrates that the field is moving towards embracing an understanding of

responsibility as both common, but differentiated (which will henceforth be abbreviated as

CBDR).

Furthermore, a key benefit arising from Transitional Justice’s embrace of CBDR stems

from the discipline’s dual aim of achieving reparation (i.e., past-oriented redress of past wrongs,

thereby obtaining justice for victims) and reconciliation (i.e., future-oriented restoration of civic

trust and social solidarity; seeking justice for social rehabilitation and progress) in response to

grave injustices. Essentially, an effective and just transition requires both backward- and

forward-looking considerations; and fortunately, a notion of CBDR assists in furthering these

aims, while diminishing points of conflict and contention between them.

3. TJ and Backward and Forward-Looking Responsibility

For instance, the backwards-looking objective is deontic, in that it expresses

society/societies’ obligation to hold those responsible to account (i.e., do justice for victims). But

obviously, the stakes in transitional settings are high and the worry is that casting the net of

blame too widely may have troubling consequences, i.e., rekindle violence, instability, and

animosity between groups. Thus, focusing over zealously on past-oriented redress potentially

undermines the discipline’s consequentialist goal of stabilizing a volatile situation by achieving

peace, security, and reconciliation. However, if past wrong(s) are not given due consideration,

then such oversight(s) may jeopardize reestablishing the rule of law, promoting accountability,

signaling a “normative break” from past injustices, or uncovering the historical truth.

Discussing how to optimally balance these competing deontic and consequentialist

objectives in the wake of ecocide will be taken up in subsequent chapters. But for now, the focus

remains on demonstrating ways in which embracing an understanding of CBDR assists

Transitional Justice in overcoming some of the difficulties that arise from embracing the dual

(and sometimes competing) aims of backward-looking reparation and forward-looking

reconciliation.

For one, employing a notion of differentiated responsibility potentially diminishes

resentment from actors who never behaved outside of ordinary moral bounds (i.e., did nothing

egregiously wrong). Such actors would likely feel that they are being unfairly and arbitrarily

targeted - if they were held to account, while countless other actors around the world who acted

similarly, receive no condemnation.

It seems psychologically intuitive that it is counterproductive to condemn actors who

behaved “normally” (i.e., within generally accepted, average, and everyday ways of being), since

such widespread blame would likely breed bitterness and dissatisfaction that might weaken

previously amenable actors’ incentive to assist in reestablishing victims’ wellbeing, restoring

social cooperation, and reconciling with past wrongs. Thus, for prudential and instrumental

reasons it is imperative to avoid holding all members of a society equally to account.

Furthermore, taking steps towards differentiating responsibility allows Transitional

Justice to reserve past-oriented blame (e.g., criminal punishment and social redress) to the worst

perpetrators (i.e., those who flagrantly violated moral conventions); which in turn assists in

isolating these actors’ guilt from tarnishing the rest of society (i.e., those who behaved in average

everyday ways). Nonetheless, the decision to hold states collectively responsible, while

expanding conceptions of aggregative responsibility, allows Transitional Justice to emphasize

that all the citizens still must take responsibility (i.e., they have a role to play, not that they are all

collectively guilty) for overcoming injustices and striving towards a better tomorrow (i.e., the

future-oriented betterment of the society).

Such an approach is justified because as Franck following Karl Jaspers and Michael

Walzer, explains, “it is both fair and right that the citizenry of every state that visits serious injury

on a people should have to bear at least significant parts of the cost” (Franck 2007: 571). Thus,

we can see how a notion of CBDR assists Transitional Justice in achieving both pastoriented

reparation and future-oriented reconciliation and explains why in recent years the discipline has

moved in the direction of fostering a diversity of approaches (i.e., individual, aggregative, and

collective) that can work in conjunction to ensure nuanced responses demanded

of particular cases.

remain, this one seems to lose its footing” (Nagel 1979: 25).

4. TJ and a Socially Capacious Conception of Responsibility

Lastly, implied in the above discussion is the fact that Transitional Justice must employ a

conception of responsibility that is capable of including at least two distinct types of

metaphysical entities natural persons and state collectives. However, recent trends in the

discipline portend a shift towards further expanding the categories and kinds of social-entities

included as potential bearers of responsibility.

Transitional Justice’s extension of responsibility to novel types of actors is most clearly

pronounced in the discipline’s recent treatment of corporate accountability. As Greeta Koska

states, “consensus is building around the need for transitional justice to secure redress for

corporate human rights abuses” (Koska 2016: 41). For instance, the former UN High

Commissioner of Human Rights, Louise Arbor, supports expanding the scope of Transitional

Justice to include socio-economic rights and corporate responsibility:

Transitional justice should take up the challenge that mainstream justice is also reluctant

to rise to: acknowledging that there is no hierarchy of rights and providing protection for all

human rights, including economic, social and cultural rights...A comprehensive transitional

justice strategy would therefore want to address the gross violations of all human rights

during the conflict and, I suggest, the gross violations [including corporate wrongs] that

gave rise or contributed to the conflict in the first place. (Arbour 2006: 14)

While it is true that at present no international trial has judged corporations responsible

for human violations; nonetheless, Transitional Justice scholars have begun to recognize

corporate complicity and involvement in past atrocities, i.e., through companies’ role in: (1)

directly taking part in violent activity to further corporate interests; (2) directly assisting human

rights violators (e.g., funding groups responsible for mass atrocities); (3) passively tolerating

human rights violations, and (4) facilitating socio-political corruption that may spark, justify, or

whether transitional justice should and/or can incorporate economic and social concerns”

(Schmid and Aoife 2014: 2). Expanding Transitional Justice’s scope to include socio-economic

harms is defended on the grounds that excluding these issues reduces the adequacy of any

narration of a conflict. The problem is that ignoring socio-economic inequality implicates a

particular story of the conflict, a narrowed discourse for discussing grievance, and a limited

vocabulary for gaining redress. As such, the worry is that the power of a Transitional Justice

mechanism to define injustice or violation should provoke careful examination of the story told

during transition because if we fail to adequately tell what happened, then a just transition may

be impossible. Thus, in this vein, one of the primary goals of this dissertation is to continue the

push for greater inclusivity by arguing that environmental harms ought to be included as relevant

narrative of concern for Transitional Justice.

facilitate mass violence. Additionally, the discipline has recently emphasized the important

function corporations play in furthering reconciliation, social stability, and prosperity by

facilitating socio-economic growth and development favorable for preventing societies from

falling back into conflict.

Essentially, the key insight is that if Transitional Justice strives to address the root causes

of conflict (i.e., establish a holistic narrative of injustice, while obtaining justice for the victims)

and prevent comparable harm from occurring again (i.e. achieve the discipline’s “never again”

motto), then it is beneficial to avoid excluding any actors connected to the atrocities (e.g.,

including corporations) from prospective consideration.129 Otherwise, the decision to ignore

relevant factor(s) and actor(s) may perpetuate impunity and generate accountability-gap(s) that

risk undermining the transitional process. As Ruben Carranza succinctly explains:

Corporate accountability, corruption, other economic crimes, violations of economic and

social rights and disputes involving access to land and natural resources are all part of a

broader set of grievances that many in the field of transitional justice simply regarded as

background but did not consider inherent to the work of truth commissions, reparations

programs or prosecutors. That has changed. There is now more pluralism and transitional

justice has evolved from being narrowly focused on physical integrity violations to

recognizing that armed conflict, political violence and repression cannot be de-linked from

their economic and social causes and consequences…Timor-Leste, Chad, Liberia, Sierra

Leone, Kenya and most recently Tunisia, were not dissuaded from turning to transitional justice

as a way of extracting corporate accountability for the role of

businesses during dictatorship or armed conflict. In different ways, their truth

commissions and prosecutors examined ‘economic crimes’ alongside physical integrity

violations, and the role of corporations in both types of abuse. (Carranza 2015)

Accordingly, the above summary expresses Transitional Justice scholars and

practitioners’ mounting awareness and willingness to recognize corporate responsibility. But it is

important to emphasize that the same reasoning used to justify Transitional Justice’s inclusion of

corporations as potentially liable (i.e., emphasizing that to fully grasp and correct injustices, it is

beneficial to consider the role of all types of actors involved in and contributing to harm) is

readily applicable to any and all categories and kinds of actors capable of constituting

groupagents (e.g., corporation(s), community(ies), state(s), non-governmental agency(ies), etc.).

Basically, once corporations, states, state-institutions, and non-state actors (e.g., the interahamwe

and janjaweed mentioned last chapter) are considered collectively accountable in transitional

settings, then there appears to be no sound basis for restricting other types of legal persons

(defined as natural persons or group-agent) from being held collectively responsible within the

Transitional Justice framework. Limiting the potential kinds of actors responsible for grave

atrocities unduly hampers practitioners’ ability to respond to complex and novel circumstances.

Thus, the discipline implicitly recognizes and benefits from embracing a socially capacious

notion of responsibility, i.e., one capable of holding any and all legal persons potentially

accountable.

In conclusion, this section has hopefully demonstrated that Transitional Justice currently

employs a notion of responsibility that is: (1) common, but differentiated, (2) both backward and

forward looking, and (3) socially capacious. Obviously there are many aspects of Transitional

Justice that will need to be explored to justify integrating “environmental transformative justice”

within the Transitional Justice framework, e.g., Transitional Justice focuses on the different ways

that perpetrators are held accountable, the sorts of reparations and amends making that are

required of them, the need for transformation of social and political structures, creating a

historical record to memorialize and acknowledge past events, navigate the possibilities and

perils of reconciliation, and stressing the importance of transitional regimes distinguishing

themselves from prior regimes that perpetrated or countenanced wrongdoing. Hence, to truly

make a compelling case for connecting Transitional Justice and environmentalism, the work will

have to take up how these and other issues find parallels in the case of justly responding to

ecocide – which, is the focus of the next chapter. But at this point, we can move forward and

begin analyzing environmentalism’s conceptualization of responsibility.

B. Responsibility in Environmentalism

In many ways the history of environmentalism is a discussion focused on expanding our

responsibility towards previously ignored entities. For instance, at the turn of the 20th century

(i.e., the period often considered the birth of modern environmentalism) John Muir (the founder

of the Sierra Club) famously advocated that we have a responsibility to preserve areas of pristine

nature and non-human life for their intrinsic value (i.e., an ecological responsibility); whereas,

Gifford Pinchot (the 28th Governor of Pennsylvania) promoted the view that we have a

responsibility to limit resource extraction to the maximum sustainable yield, so as to conserve

natural resources for future generations (i.e., an intergenerational responsibility).

Nevertheless, attempting to provide a coherent narrative of the conceptual development

of responsibility in environmentalism, is hampered by the fact that there is disagreement among

environmentalists regarding essentially all the elements that would normally define a discipline,

e.g., the objective(s), mechanism(s), practice(s), subject matter(s), etc. Thus, unlike Transitional

Justice (an extremely broad discipline itself), it is unclear if one can even construe

environmentalism as a discipline at all.

Consequently, what this section aims to achieve is to offer a brief historical overview of a

few dominant strands in environmental thinking, which express shifts and tensions regarding

environmentalists’ broad understanding of responsibility. The hope is that this imperfect

summary, will at least illustrate that a comprehensive account of responsibility for environmental

harms (i.e., one encompassing a wide swath of often conflicting and competing environmental

considerations), ought to be: (1) common, but differentiated, (2) both backwards and forward

looking, and (3) socially capacious.

1. Origins of Environmental Responsibility

Humans like all other life forms must alter their environment to survive. But, in virtue of

our cognitive sophistication, behavioral plasticity, and dynamic sociability, we have proven

exceptionally adept at transforming the world around us. Unfortunately, as John Gray laments,

our species adaptive capacities have posed a problem for innumerable other organisms:

“Throughout all of history, and prehistory, human advance has coincided with ecological

devastation” (Gray 2002: 7).

Hence the evidence of widespread ecological harm, coupled with the insight that early

man could simply relocate to greener pastures after depleting their current habitat of readily

accessible resources, allows us to plausibly suggest that many (if not most) prehistoric

communities would have had limited concern regarding their role in causing ecological

degradation. As Martha Macintyre contends, “the lack of a conservation ethic can itself be

explained in functionalist terms – they [i.e., prehistoric communities] did not need one and

therefore did not develop ideas about sustainability. The low populations and simple

technologies ensured that human impact was restricted” (Macintyre 2002: 5). As Thomas Princen

explains:

In an ecologically ‘empty world,’ a world in which human impact was minuscule relative

to the extent and regenerative capacity of resources and waste…being resourceful meant

getting the most from nature’s bounty…but not for long-term sustenance…[Since] one

just had to pack up and move on. There was always another frontier. (Princen 2005: 8)

Accordingly, the assumption is that conceptions of environmental responsibility would

likely not have arisen until after groups acknowledged that they had no available uninhabited

land to expand into (i.e., that they lived in a ‘full world’) and were compelled to settle their

current habitat. As Per Olsson, Carl Folke, and Fikret Berkes explain:

Investigators found that people moving from one area to another easily gained

detailed knowledge of particular resources and species, but peoples’ knowledge of

processes and functions of the underlying ecosystem that sustains those resources was

patchy and incomplete. It seems like knowledge and understanding relevant for management

of ecosystem dynamics takes a much longer time to develop. This suggests that dwelling

for long periods of time in specific places is helpful in generating an understanding of

ecosystem dynamics and sustainable management practice. (Olsson, Folke, and Berkes

2004: 77)

Therefore, once pre-modern communities reach this saturation point (i.e., a “full earth”

when moving into a new territory required confrontation with another group), their only chance

of achieving a self-sufficient and peaceful existence (i.e., without invading another group’s

territory) was to develop ecologically sustainable practices, i.e., “self-interested, conserving

feedback that comes from attachment to place” (Berkes et al. 2006: 1558). As Berkes explains,

“[after] the hunters know that it is possible to deplete animals [or resources more generally] by

overhunting and that wastages do matter, their value systems change accordingly” (Berkes 1998:

123).

Hence in an attempt to achieve a sustainable lifestyle, there is much anthropological and

archaeological evidence to suggest that these communities embraced a notion of common

property, in which members of a community would share a resource but exclude nonmembers of

the community from accessing it (Bromley 1991). As Margaret McKean explains, “common

property regimes, used by communities to manage ecological resources for long-term benefits,

were once widespread around the globe” (McKean 1996: 5).

Accordingly, our discussion of autarkic communities last chapter, vividly illuminated that

eco-social systems relying on notions of common property are an effective means of sustaining

resources and connecting peoples to a place. Essentially, autarkic communities develop and

embrace cultural norms supporting environmental stewardship, recognition of the group’s

embeddedness within their habitat, and internalization of the value of maintaining harmonious

ecosystem functioning. For instance, as Warwick Fox recounts, his conversation with a Nez

Percé Native American about potentially plowing the land, “Smohalla does not reply with a

closely reasoned explanation as to why the ground has intrinsic value but rather with a rhetorical

question expressive of a deep identification with the earth: ‘Shall I take a knife and tear my

mother's breast?’” (Fox 1986: 76).

As such, we have seen that autarkic communities foster rich notions of environmental

responsibility that allowed them to sustainably inhabit an ecosystem for generations. But for the

purposes of analyzing environmentalism’s notion of responsibility for environmental harm,

focusing on groups that successfully live in harmony with their surrounding habitat, offers

negligible insight. Consequently, it will be helpful to examine communities that rely on modes of

subsistence that overextend their ecosystem’s carrying capacity and generate environmental

degradation. In this light, we will now move on to discuss conceptions of environmental

responsibility developed in modern Occidental culture.

2. Nuisance Law as Responsibility for Environmental Harm

Historically, at least in the English-speaking world, individual environmental

responsibility was limited to the avoidance of causing injury to other’s enjoyment of real estate

(i.e., their land). In early English common law, private property (i.e., land use and ownership)

was regarded as sacrosanct (Nolon 2006: 823). As William Blackstone, one of the first and most

preeminent legal scholars stated, “that sole and despotic dominion which one man claims over

the external things of the world, in total exclusion of the right of any other individual in the

universe” (1782).141 Thus, a plaintiff could file suit for environmental harms that deprived them

of their land (disseisina – deprivation), direct interference and entry on their land (transgressio –

trespass), and for indirect interference with the use of their land from outside their land

(nocumentum – nuisance) (Coquillette 1979: 765).

From an environmental perspective, the tort of nuisance appears to be the most relevant

and compelling cause of action, in that it represents the one area of common law that limits

landowner’s use of their property. Essentially, nuisance law prohibits private land usage(s) that

undermine and diminish the rights of other property owners to use and enjoy their land, i.e., sic

utere tuo ut alienum non laedas (“so use your own property as not to injure your neighbors”)

(Coquillette 1979: 776). Since, the available remedies of a successful nuisance claim include the

removal and abatement of the aggravation, the tort offers a legal means of stopping

environmental degradation, i.e., “in civilizing the cities and in protecting the countryside”

(Brenner 1974: 403). Hence, nuisance law in many ways represents the embryonic origins of

environmental protection of peace and quiet, clean air, sanitation, etc. (Brenner 1974: 403).

For instance, the King’s Bench ruling in Aldred’s Case (1610) is often considered the birth of

environmental law (Schoenbrod 2000: 5). In the case, the court held that operating an odorous

pigsty near a neighborhood was a nuisance. As such, Aldred’s Case specifically and nuisance

law more generally, established legal responsibility to abate noxious noises, smells, sights,

irritants, and pollutants provided their generation is not in line with the customary use of

framework, none of these policies articulate a comprehensive doctrine of environmental

responsibility.

141 See Blackstone’s Commentaries on the Laws of England (1782).

the land (i.e., think contemporary zoning laws) (Epstein 2015: 6).

But from an environmental standpoint, an issue with the common law’s reliance on

customary usage, when determining if an activity is permissible or not, is that such a standard

neuters nuisance law’s ability to restrict or reproach environmental harm(s) occurring in already

degraded areas. Consequently, historically mistreated neighborhoods (i.e., those already suffering

under environmental hardship) will be further disadvantaged in receiving consideration,

compensation, and protection from new or ongoing harms. Hence, focusing on customary use

greatly impacts and impairs the possibility of achieving an equitable social distribution of

environmental bads and goods.

More generally, legally assenting to customary practice as appropriate hinders the

prospect of reducing pollution in societies with histories of environmental mistreatment – such as

our own. Since obviously, emphasizing the role of traditional use when determining if violations

have occurred, will reinforce, maintain, and protect current levels and patterns of

environmentally harmful activity.

Basically, accepting customary usage as legitimate renders the common law impotent

regarding the prospects of legally prohibiting conventional practices or indicting established

conditions within an area. Thus, an issue with limiting environmental responsibility to common

law standard(s) in the modern world (i.e., a world defined by mass consumerism, unmitigated

globalized production, unsustainable resource extraction, and widespread pollution) is that such

an approach fails at passing judgment against and restricting many environmentally harmful

practices, i.e., it is unable to compel actors to cease and desist from customary uses of the land

that are damaging to ecosystems. And unfortunately, since, industrial practices have been

pervasive for generations in many contemporary societies (e.g., during the last two hundred

years, the Industrial Revolution altered the landscapes of much of Western Europe and North

America), it is likely this standard would bar many opportunities for pro-environmental legal

recourse.

Hence, an appropriate method to prevent continued environmental degradation requires

taking responsibility to curb unsustainable production, consumption, extraction, and pollution,

i.e., proscriptively establish, follow, and enforce acceptable environmental standards. As David

Schoenbrod explains: “It is much easier to discern a custom against the existence of pigsties in a

certain neighborhood than a custom about how many pigsties there should be [in society more

generally]. A few refineries in a large metropolitan area may be fine, but not a dozen”

(Schoenbrod 2000: 6).

Essentially, the issue is that the common law framework is designed to focus on actual

harm(s) (i.e., a party must show damages). Thus, nuisance claims are inherently reactive and

backwards looking and as such are ill suited to motivate preventative measures to stop

environmental harms from occurring in the first place (i.e., beyond the threat of future litigation

causing actors to forgo or abate potentially tortious activity). Case in point, environmental

enforcement mechanism(s) based on custom(s) are limited to offering ex post facto judgments

and as such, are unable to determine if new technologies or social practices are acceptable prior

to implementation.

Also, traditionally, under the common law, only aggrieved private property owners could

bring nuisance claims. Therefore, private torts are unable to protect unowned or publicly owned

natural objects. Furthermore, under common law property owners had no responsibility to

preserve their land (i.e., so long as no one else’s property was impacted, land owners had the

right to degrade or destroy their property as they saw fit). Thus, worrisomely for many

environmentalists, these standards entail that natural objects are only protected for their extrinsic

value to their owner, i.e., common law does not recognize the intrinsic value of nature in-and-

ofitself or extrinsic value to the commons.

Moreover, many environmental nuisances have long gestation periods, e.g. the threat of

radioactive poisoning from Plutonium is minimum 24,100 years; arsenic, lead, and mercury can

contaminate water supplies for generations; one fifth of carbon molecules stay in atmosphere for

over a thousand years, etc. (Bell 2017: 280). As such, the long temporal scope of environmental

harms may foreclose opportunities to hold responsible parties to account, i.e., if those liable for

causing harm cease to exist (e.g., natural persons dying or corporations going out of business) in

the intervening period, between their noxious activity and the onset of resulting damages, then

those harmed may be left with no legal recourse.

Furthermore, litigation is costly (i.e., in terms of both financial, temporal, and social

capital); thus, the poor or socially disenfranchised may in practice lack the ability to investigate,

file, and pursue valid causes of action. Consequently, it is likely that limiting environmental

protection to the tort of nuisance disproportionally benefits wealthy and socially privileged

actors.

Finally, the common law approach developed to handle situations in which a clearly

defined defendant harmed a clearly defined plaintiff. In such cases, the roles and responsibilities

are well defined, in that the plaintiff is the aggrieved party responsible for bringing the cause of

action and the defendant is responsible for compensating the plaintiff for their loss and/or

stopping the harm from occurring once guilt is established.

But much environmental harm in the modern world does not fit this narrative, in that

many suffer (hundreds, thousands, millions, even billions in the case of climate change) from

effects resulting from the cumulative and combined contributions of innumerably dispersed and

uncoordinated actors (potentially even the victims themselves). As such, common law is

ineffective in providing recourse for these sorts of cases.

As Schoenbrod wryly explains, the problem with pursuing complex systemic harm(s)

from within the common law framework is that, “enforcement maybe worthwhile [i.e., from a

social perspective], but worth no one’s while [from an individual perspective] (Schoenbrod 2000:

6). Thus, if the only available social response to environmental destruction is the common law

tort of nuisance, then many instances of pervasive, widespread, and systemic industrial

overproduction and waste (which much environmental harm is since the Great Acceleration)

may go unabated and unenforced. As Simon Caney explains, the problem with such a position is

that, “we should not [emphasis added] take pollution as a given and then act in a reactive

fashion: rather, we should be pro-active and take steps to minimize the likelihood of excessive

pollution” (Caney 2005: 769).

3. Statutory Expansion of Environmental Responsibility

Consequently, for all of these reasons modern states have pushed for statutory measures

aimed at proactively strengthening environmental protection by expanding our individual and

social environmental responsibility to avoid causing certain types of harms.146 According to

Holmes Rolston, the explanation, justification, and motivation behind the litany of environmental

legislation enacted during the second half of the 20th century stems from growing recognition

that, “a community nearing the carrying capacity of its resource base will have to curb short-term

self-interest for the long-term good of all (Rolston 2001: 351).

As Daneil Butt explains, “the [statutory] model…is…one where environmental

protection is thought to come about using the power of the state to align self-interest with

environmental good” (Butt 2017: 56). In other words, the legislation attempts to solve scenarios

in which, the activity of numerous people that would normally be fine (or even beneficial)

individually, collectively accumulates into social harm.

Thus, unlike the common law, which focuses on negative rights of non-interference, the

146 Rolston offers an extensive list of federally enacted environmental law in the United States:

“Clean Air Act (1955), Amendments (1963, 1965, 1969, 1977, renewed 1970, 1990); Wild and

Scenic Rivers Act (1968); Wilderness Act (1964) National Environmental Policy Act (1969);

Marine Mammal Protection Act (1972); Endangered Species Act (1973, 1982), Amendments

(1976, 1977, 1978, 1979, 1980); National Forest Management Act (1976); Federal Land Policy

and Management Act (1976); International Environmental Protection Act (1983);

Comprehensive Environmental Response, Compensation, and Liability Act (Superfund) (1980),

Amendments (1986); Clean Water Act (1987); Emergency Wetlands Resources Act (1986)”

(Rolston 2001: 349-350). And, he explains that internationally, “there are over 150 international

environmental agreements registered with the United Nations” (Rolston 2001: 350).

legislative act(s) aim at proactively promoting the public good. Accordingly, the laws often

afford citizens broad standing (whether directly harmed or not) to bring claims against actors in

violation of the statutory standards and requirements in the name of the public interest (public

weal).

As such, 20th century environmental legislation represents a radical departure in social

engineering, away from laissez faire and retrospective consideration of environmental harm(s),

tacitly endorsed by the common law, to a statutory approach designed to proactively bring about

particular state(s) of affairs. For example, The Endangered Species Act aims at halting further

extinction and protecting maximum biodiversity; The Clean Air and Clean Water Acts aim at

ensuring safe drinking water and breathable air; Ozone Layer Protection Act aims at restoring

ozone layer to its preindustrial functioning, etc. Hence, the statutes emphasize a prescriptive and

forward-looking responsibility to achieve certain environmental targets and end states.

Consequently, the statutory measures facilitate an expansion of individual and social

responsibility regarding environmental harms. Previously, actors were legally limited to pursuing

claims regarding environmental harms occurring only on their own property and conversely

actors were only liable for causing such harm to others’ property. Under the contemporary

statutory framework all citizens can actively monitor and enforce environmental law(s) for the

common good and all actors are liable in virtue of violating the statutes, even if no party is

directly harmed. Thus, we can see that the statutory framework expands the subject matter of

environmental responsibility beyond the traditional common law concern of protecting private

land use.

However as previously stated, one of the key insights driving the proliferation of

environmental regulations was mounting awareness and recognition that human activity was

growing increasingly destructive to the environment. The concern was that the scope and scale of

industrial productive and consumptive practices had reached such intensity that the combined

effect of countless small acts, which in-and-of-themselves would normally be harmless (e.g.,

driving a car, taking a plane, using plastic, turning on air conditioning, fertilizing crops, using

aerosol spray deodorants, etc.), were when aggregated, producing grave environmental harms

(e.g., climate change, the sixth mass extinction, ocean acidification, etc.).

Unfortunately, the statutory model faces many challenges in providing a conception of

environmental responsibility adequate for preventing, repairing, and responding to the above

crises. First and foremost, it is ill-designed for confronting the fact that many environmental

problems are international in nature, in that they do not respect or confine themselves to state

borders, i.e., harms (e.g., acid rain, chemical spills, ozone depletion, etc.) that are generated by

processes and practices in one (or many) state(s) that can readily cross interstate-lines (e.g., by

cycling through the atmosphere, waterways, groundwater, etc.) and negatively impact other

state(s).

The problem is that the statutory model offers a framework for stipulating impermissible

acts within state boundaries; but its intrastate focus, restricts state’s ability to command and

control actors outside of their territorial borders to cease and desist from noxious activity. Hence,

if states lack authority to extradite and prosecute international actors for “spillover” harms, then

the statutory model’s limited domestic jurisdiction leaves citizens vulnerable to transnational

pollution and ecological resource depletion.

Thus, a fundamental limitation of the statutory model is that even if citizens take

maximum precaution for preserving and protecting their environmental wellbeing, i.e., enacting

the strongest environmental legislation and enforcement mechanisms possible within their

borders. They are nonetheless left vulnerable regarding environmental injury(ies) from abroad,

i.e., the only available recourse under the statutory model is campaigning, negotiating, and

persuading state(s) from which harm is emanating to enact policies aimed at outlawing or

regulating injurious activity within their sovereign territory or appealing (without further legal

backing or threat) to the responsible parties to cease and desist from the injurious activity.

However, if these negotiations and lobbying strategies fail, the statutory model is unable to

directly prosecute culpable parties or stop injuries from occurring.

Accordingly, the statutory model’s domestic framing, poses problems for tackling many

pressing environmental issues, in that it is quite restricted in its ability to hold actors responsible

for internationally generated harms to account. Essentially, the statutory model proves

inadequate because its intrastate framing is unable to confront the reality that, “bits of

populations [citizens] Ecological Footprint can be found all over the world” (Wackernagel and

Rees 1996: 53). As such, environmentalism requires a conception of responsibility capable of

confronting what Richard Falks calls, “endangered-planet problems” (Falks 1971).

C. Common, But Differentiated Environmental Responsibility

Recently in a response to the above challenges, the international environmental

community has moved towards developing and promoting a notion of ‘common, but

differentiated responsibility’ for environmental harm (CBDR) (Eckersley 2015).152 Essentially,

the international environmental community has opted to embrace CBDR because of the desire to

cast a wide net, in the hopes of maintaining the benefits of shared and collective responsibility,

while concurrently avoiding an overly condemnatory framework that draws socially insensitive

conclusions by blaming victims for environmental degradation.

Basically, the work contends that CBDR is a compromised position between two

competing strands of environmental thought – what I will broadly dub the ‘Anthropic

perspective’ (which aims at developing a notion of common responsibility by holding all of

humanity to account)153 and the ‘Environmental Justice perspective’ (which aims at developing a

indefinitely’” (Wackernagel and Rees 1996: 158). As Andrew Dobson explains the usefulness of

such a definition is that, “the ecological footprint then becomes a time‐slice indicator of a human

community’s metabolistic relationship with the goods and services provided by its natural

environment” (Dobson 2003: 100).

152 The concept of CBDR was famously expressed in the 1992 Rio Declaration: “States shall

cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity

of the Earth’s ecosystem. In view of the different contributions to global environmental

degradation, States have common but differentiated responsibilities. The developed countries

acknowledge the responsibility that they bear in the international pursuit of sustainable

development in view of the pressures their societies place on the global environment and of the

technologies and financial resources they command” (Principle 7, 1992).

153 For our purposes the Anthropic perspective is not strictly limited to the debate focused on

determining if human activity has pushed the Earth into new geological age (i.e., the

Anthropocene), but instead involves any environmental framework that blames humanity in toto

for environmental degradation – e.g., James Lovelock’s Gaia Hypothesis that views humanity as

disease that the Earth is combatting (Lovelock 2009); Simon Dalby’s Pyrocentric model that

views humanity’s reliance on fire as the source of environmental destruction (Dalby 2018);

notion of differentiated responsibility attuned to historical realities that certain actors have

played a greater role in generating environmental harm than others).154 Thus in an attempt to

justify why environmentalism benefits from embracing CBDR, the remainder of the section will

analyze these conflicting strands of environmental thought; while concurrently, illustrating how

each perspective fails at conceptualizing an adequate notion of environmental responsibility.

1. The Anthropic Perspective

The Anthropic perspective arose as an attempt to effectively frame and confront the

problems presented by recognizing the growing (i.e., international and global) scope and scale

that human activity is having on biotic and abiotic ecosystem functioning. The view likely stems

from pessimistic strands of environmental thinking, which emphasize that humans necessarily

require the death and destruction of many living things in order to survive, i.e., walking, bathing,

clothing ourselves, eating, all necessitate harming other living things.

But more recently, the assessment that humanity in toto is responsible for environmental

degradation, began receiving increased attention, when many academics (mostly scientists)

started proposing that the Earth had entered a new geological era: the Anthropocene.

Edward Wilson’s Eremozoic drive, which contends that humanity is currently in the midst of a

civilizing frenzy to empty reality of everything that is non-human (Wilson 2006); Erich Fromm’s

Necrophilic orientation, which he believes pushes man to, “transform that which is alive into

something unalive” (Fromm 1973: 332), etc.

154 For our purposes the Environmental Justice perspective is a broad tent of various

historically and sociologically attuned environmental standpoints - e.g., environmentalism of the

poor (see Guha and Martinez-Alier 1997), climate justice (see Dawson 2010), sustainable

selfdetermination (see Corntassel 2008), ecofeminism (see Mies and Bennholdt-Thomsen 1999),

environmental racism (see Bullard 1990); global environmental justice (see Grineski, Collins,

Ford, Fitzgerald, Aldouri, Velazquez-Angulo, and Lu), and the environmental justice movement

(see Shrader-Frechette 2002) – all of which concur in stressing the importance of recognizing

differentiated levels of responsibility for environmental harms.

“Characterized by the fact that the ‘human imprint on the global environment has now become

so large and active that it rivals some of the great forces of Nature in its impact on the

functioning of the Earth system’” (Bonneuil and Fressoz, 2016: 4).155

Essentially, the Anthropic perspective places blame for transforming the environment to

such an extent as to alter Earth-system functioning(s) on the Anthropos (i.e., the whole of

humanity operating as a monolithic force). Thus, such an analysis can be interpreted as a

“doubling-down” and expansion of the totalizing, universalizing, and collectivist rhetoric that

had gained traction and credibility in the emerging corpus of environmental legislation. But

155 The Anthropic perspective gained traction within the scientific community in the second

half of the 20th century as empirical evidence from multiple disciples (climatology,

oceanography, geology, biology, etc.) began mounting, demonstrating the dramatic effect of

human activity on the planet, i.e., we have entered the age of, “human dominance of biological,

chemical, and geological process on Earth” (Crutzen and Schwagerl 2011). Use of words such as

‘dominance’ in the above quote express much of the hyperbolic rhetoric that many criticize the

Anthropic perspective for. But for our purposes, refuting or supporting the veracity of these

claims is beyond the scope of the work; as we are simply concerned with the Anthropic

perspective, as a means of demonstrating the historical shift in environmental thinking away

from intrastate concerns found in the statutory model, towards a view of common and collective

responsibility focused on global environmental degradation.

unlike the statutory model, which embeds responsibility for environmental harm within the

territoriality of sovereign states, the Anthropic perspective transcends these intrastate boundaries

by focusing responsibility for environmental degradation at the global scale.

An important feature of the view for our purposes is that it stresses the Anthropos’

common culpability, concern, and responsibility for preventing, mitigating, and repairing

environmental harms, i.e., the Anthropic framework emphasizes a form of non-differentiated

responsibility for all humanity. As Erle Ellis explains, while endorsing the view: “The Earth we

have inherited from our ancestors is now our responsibility…there is no alternative except to

shoulder the mantle of planetary stewardship. A good, or at least better Anthropocene is within

our grasp” (Ellis 2011). Diane Ackerman expresses the same sentiment, thusly:

But, for a change, we know the exact causes of the extinction, having created them

ourselves – climate change, habitat loss, pollution, invasive species, big agriculture,

acidifying the oceans, urbanization, a growing population demanding more natural

resources – and we’re in a position to stop them, if we set our collective mind to it.

(Ackerman, 2014: 154)

Much of the appeal of the Anthropic view stems from the fact that it may be true that

humanity has influenced the entire global environment. Since, as Rolston provocatively states,

“100% natural systems no longer exist on Earth, since there is DDT in penguins in Antarctica”

(Rolston 2016: 64).157 Nevertheless, there are numerous problems and challenges for framing an

adequate conception of environmental responsibility from within the Anthropic perspective.

literally, then the Anthropic perspective is clearly grounded in and built upon this faulty

assumption.

157 A worry regarding Rolston’s statement is it relies on the problematic dichotomy separating

Man from Nature. Many environmentalists have argued that it is precisely this view that Man is

separate from Nature that has led to our present environmental crisis. Thus, an important step for

improving our disastrous relationship with the environment is to push for greater understanding

and recognition that we are in fact part of nature and entirely natural ourselves. As such, one of

the hopes motivating this dissertation is that pursuing environmental transformative justice

measures will assist in reaching this realization.

For one, the conclusion that all of humanity is responsible and complicit in causing

planetary environmental harm seems suspect and hastily drawn. It ignores the relevant fact that

certain segments of the human population (e.g., roving imperialists vs. autarkic communities) are

far more culpable than others (both historically and at present) for the general deterioration of the

global environment, “a new human being born on Earth will have a carbon footprint a thousand

times greater if she is born into a rich family in a rich country, than into a poor family in a poor

country” (Bonneuil and Fressoz 2016: 70). As Vaclav Smil calculated, “the difference in modern

energy consumption between a subsistence pastoralist in the Sahel and an average Canadian may

easily be larger than 1,000-fold” (Smil 2008: 259). As such, the perspective is factually mistaken

in emphasizing humanities’ undifferentiated and supposedly aligned role in causing

environmental harm.

Another problem with the view is that it offers a totalizing “grand narrative” that reduces

disparate environmental harms into an all-encompassing framework emphasizing radical changes

occurring to the entirety of the Earth-system. Accordingly, such an approach exceeds our

subjective awareness and obscures our ability to grasp the harms under consideration.

The concern is that the Anthropic framework’s emphasis on planetary changes and global

solutions is potentially demotivating for individual human actors that are phenomenologically

embedded and exist within particular communities and habitats. Essentially, the problem is that

our subjective and localized experience limits our ability to grasp (i.e., in our everyday lives) the

Earth-level harm(s) under consideration (e.g., global temperature rise, ocean acidification,

biodiversity loss, etc.).160 For instance, knowing that at the planetary-scale, the Earth will

experience a three degrees-Celsius rise in temperature, offers little explanatory insight into what

the impact of this global change will mean at a local level (i.e., how it will change and alter the

immediate ecosystem(s) we engage with and rely upon in our everyday lives);161 which in turn,

makes it extraordinarily challenging to conceptualize from this information the local harm(s) that

will occur, what damages we are responsible for, or what action we can take to prevent, mitigate,

hopelessness. Furthermore, at a psycho-sociological level the problem with internalizing and

acting upon the knowledge is its propensity to alienate, i.e., such knowledge may foster a sense

of disconnect, discontentment, discomfort, and disdain for our own society’s unreflective naiveté

and blissful ignorance in proceeding according to the logic of “business as usual” in the midst of

an ever-growing environmental crisis.

160 Thus, while it is true that modern locomotion (e.g., planes, high-speed trains, cars, etc.)

allows us to rapidly traverse from one area of the globe to another and that modern modes of

communication (e.g., the internet, telephone, television, etc.) allow us to stay informed and even

instantaneously see far off corners of the globe; nonetheless, our daily lives are situated within

the specific location we currently inhabit. As such, we are restricted in our ability to gain a

vantage point, which allows us to grasp planetary change.

161 It is important to stress that this argument does not imply that because these planetary

changes occur at a scope and scale that humans are unable to grasp in our everyday lives that no

harm is occurring. The harms (e.g., flooding caused by rising sea levels, starvation caused by

biodiversity loss, heat strokes caused by increasing temperature) are no doubt real and injurious.

However, the point is simply emphasizing that the threshold limits of human perception (i.e., the

spatial and temporal scope and scale of phenomenological awareness) hinder our ability to

experientially track perceptible differences linking specific act(s), to global alteration(s),

resulting in localized harm. As such, these experiential limitations make it exceedingly

challenging to assign responsibility for the actual injuries caused by planetary changes that the

Anthropic perspective focuses on.

or adapt to palpable environmental degradation.

Consequently, if we tend to struggle with experientially discerning or affectively

internalizing the global trends that the Anthropic perspective is concerned with, then such an

orientation (i.e., focusing on planetary changes to frame our analysis of environmental

degradation) is likely to hinder responsiveness in our reactive emotional attitudes.163 Obviously,

such a result is worrisome in that the work endorses the idea that we rely heavily on our reactive

attitudes to compel action and allocate blame. Thus, if this analysis is correct, the Anthropic view

(contrary to its own aspirations) may foster an insensitivity to environmental harm and transform

us into the proverbial frog in a pot of gradually heating water numb and unable to respond to the

changing world around us.164

Also, in this vein of analysis, the Anthropic view can lead to a skewed understanding of

how environmental harms actually are brought about. For instance, after internalizing the

Anthropic perspective that the combined action of all humanity is causing environmental

degradation, one may begin to believe that the world is running out of water because in

conjunction each individual human is drinking too much of it, taking too long of showers, or

watering their lawns in access, etc.

Whereas, the reality is that it is industrial mass production, commercialization, and

reliance on global supply-chains that generates the bulk of the harm.166 As Kirkpatrick Sales

states, “the story has been the same every year: individual consumption – residential, by private

car, so on – is never more than about a quarter of all consumption; the vast majority is

commercial, industrial, corporate, by agribusiness, and government. So even if we all took up

cycling and wood stoves it would have a negligible impact on energy use, global warming and

atmospheric pollution” (Sale 2003)

Hence as we saw last chapter, human communities that subsist without relying on

rapacious institutions, structures, and processes (i.e., autarkic communities) are often able to

strengthen their habitat. As such, the Anthropic perspective functions to obscure the truth of

environmental depredation, i.e., that not all humans and lifestyles inevitably harm the

environment, nor will all communities be harmed to the same extent.

Nonetheless, despite these difficulties, the perspective seems motivated by the laudable

objective of stressing the fact that solving the present environmental crises requires a unified

global effort (i.e., the same realization that limited the success of a more traditional statutory

approach). Thus, a beneficial insight gleaned from the Anthropic framework is that it highlights

the reality that to effectively combat environmental degradation at a global scale, requires

acrossthe-board cooperation, i.e., recognizing that we are all in this together. As Steven

Vanderheiden succinctly states, “it also reminds us that we are all citizens of the same finite

planet, bound together in relationships of interdependence and mutual responsibility”

(Vanderheiden 2011: 83).

Consequently for our purposes, the Anthropic perspective effectively illustrates that

environmentalism benefits by incorporating a ‘commonality’ criterion (meaning everyone has a

role to play in combatting environmental harm) within its conception of responsibility.

Accordingly, while it might behoove environmentalists to move away from embracing the more

dubious elements of the Anthropic perspective, there are advantages to not abandoning the

critique entirely, as it has proven helpful in demonstrating the need for widespread cooperation in

combating pervasive environmental degradation.

Essentially, an important corrective to the political environmentalist consciousness of the

Anthropic perspective is recognizing that environmental destruction is not the fault of some

generalized mass of humans (the Anthropos), i.e., much of the harm is generated by a small

percentage of actors benefiting from environmentally unsustainable practices. Accordingly, we

need a notion of responsibility that will allow us to better differentiate and hold actor’s

environmentally bad decisions and mismanagement to account.169

2. Environmental Justice Perspective

Fortunately, in the decades immediately preceding the initial formulation of the

Anthropic perspective, new strands of environmental thinking arose that strove to confront

precisely the problem of developing an effective framework for conceptualizing disparate levels

of responsibility for environmental harms. As previously explained, we will capture these diverse

trends and movements by broadly classifying them all under the umbrella term of Environmental

Justice.

general type of harm ecocide embodies by explaining the global trends, policies, practices,

norms, and institutions that are causing environmental degradation in the first place. 169 One of

the major goals of this project is to assist in more clearly illustrating how environmental harms

actually occur. The work endeavors to achieve this aim through providing a model, which

correctly represents the causes of ecocide by assigning the actors, actions, and institutions their

appropriate causal significance.

As stated, Environmental Justice focused first and foremost on differentiating degrees of

responsibility for and victimization from environmental degradation. Notably, unlike the

Anthropic perspective that derives much of its support and credibility from the scientific

community; the Environmental Justice perspective gained traction and respectability from within

the social sciences, humanities, and various social justice movements. Thus, the disciplinary

origins, orientation, and training of practitioners and proponents of the perspective make it

wellpositioned and conceptually equipped for considering historically differentiated

responsibility for environmental harms.

The overarching objective of the various Environmental Justice movements is to show

how certain segments of humanity have been treated unjustly in one or all of the following ways:

(1) distributive injustice – the inequitable sharing of environmental ‘goods’ (resources) and

‘bads’ (harm and risk); (2) procedural/participatory injustice – unfair ways in which social

decisions are made that exclude individuals or groups from controlling their own relationship

with their environment; and (3) lack of recognition – individuals, groups, and environments

being historically undervalued (Vandherheiden 2016). “Witness Katrina in black and white

neighborhoods of New Orleans, or Sandy in Haiti and Manhattan, or sea level rise in Bangladesh

and the Netherlands, or practically any other [environmental] impact…there will be lifeboats for

the rich and privileged” (Malm and Hornbord 2014: 66).

Hence, we can see that one of the key insights of the Environmental Justice perspective is

emphasizing that instances of environmental harm track, reinforce, and exacerbate social

inequities. Consequently, the goal of the Environmental Justice movement is to employ these

histories of injustice as means of recognizing, justifying, and achieving broad socio-economic

and environmental objectives.170

However, there is a problem with the view in that it seems to presuppose that the

environmental and social harms are distinct. Whereas, a central goal of this work is showing that

socio-cultural and ecological systems are linked, i.e., the project strives to further understand

170 For instance, the EPA defines the movement’s core aims and aspirations as follows:

“Environmental justice is the fair treatment and meaningful involvement of all people regardless

of race, color, national origin, or income with respect to the development, implementation, and

enforcement of environmental laws, regulations, and policies. EPA has this goal for all

communities and persons across this Nation. It will be achieved when everyone enjoys the same

degree of protection from environmental and health hazards and equal access to the

decisionmaking process to have a healthy environment in which to live, learn, and work” (EPA

2012). As Ashley Dawson explains: “These core tenets underlined that the movement was not

just about environmental issues, but rather that social justice goals such as economic equity,

cultural liberation, and the political participation of people of color at all levels of decision-

making were an integral part of the struggle” (Dawson 2010: 326).

and communicate the complex interrelation, feedback, and embeddedness of people and their

habitat.

However, despite the above criticism, the Environmental Justice perspective is useful for

our current purposes, in that the discipline by offering narratives of environmental injustice

assists in providing insight into methods of analyzing disparate levels of responsibility for

environmental degradation. Essentially, Environmental Justice effectively illustrates cases in

which some groups received or expected to receive none of the benefit from an environmental

harm, had little to no input in controlling the course of action that led to the harm, or went

unrecognized as a relevant actor in the events that caused the harm. Therefore, in these cases,

Environmental Justice rightly emphasizes that it seems strange to consider such groups

responsible for the harms; and as such, the discipline successfully articulates a need for a

conception of differentiated responsibility in environmentalism.

Accordingly, it is evident that the Environmental Justice approach (unlike the Anthropic

view) is attuned to historical and social realities, i.e., that certain classes of actors materially and

historically bear greater or complete responsibility for causing environmental harms. But the

downside of such a view is that it may foster a sentiment that groups or individuals who are not

responsible for the harms are absolved from assisting and joining in environmental movements,

e.g., Lawson explains how often, “African Americans feel no responsibility to join with

environmentalists to address environmental issues beyond their local issues” (Lawson 2008: 3).

Consequently as we have illustrated, a difficult challenge for framing an adequate

conception of environmental responsibility is navigating the divide between the aim of casting a

wide net, in the hopes of maintaining the benefits of shared and collective responsibility (i.e., the

goal of the Anthropic perspective), with the conflicting desire to avoid being overly inclusive

and drawing socially insensitive conclusions that blame the victim for the environmental

degradation (i.e., the goal of the Environmental Justice perspective). As previously stated, in

attempting to resolve this tension, the international environmental community has settled on

conjoining the two distinct and disparate goals by adopting the CDBR principle.

D. Conclusion

Obviously, emphasizing CBDR for environmental degradation necessitates a view of

responsibility that is both backwards and forwards looking. Backwards looking, in that it is able

to hold those historically responsible to greater account (the Environmental Justice perspective

furthers this objective); but forwards looking, in that it is able to emphasize that we all must

work together to face the present environmental crises (the Anthropic perspective furthers this

objective).

Lastly, from the protracted analysis throughout this section, it should seem

straightforward that environmentalists are comfortable employing a socially capacious

understanding regarding the kinds of entities that are potentially answerable for causing

environmental harm. This is evident from the fact that during the discussion, individuals,

corporations, states, interstate institutions, global systems, and collectively all of humanity have

at various points been blamed for generating environmental harm. Thus, many of the same

prudential and epistemic concerns that compelled Transitional Justice scholars and practitioners

to expand their notion of responsibility (i.e., to address the root causes of conflict by establishing

a holistic narrative of injustice; obtain justice for the victims, and prevent comparable harm from

occurring again), assist in explaining environmentalists’ willingness to hold all categories and

kinds of actors that contribute to environmental degradation responsible.

In conclusion, this section demonstrated that environmentalism is amenable to and

benefits from adopting a notion of responsibility that is: (1) common, but differentiated, (2) both

backwards and forward looking, and (3) socially capacious. Thus, the expectation is that the

reader recognizes and accepts that Transitional Justice and environmentalism employ

conceptions of responsibility that have substantial overlap and considerable commonality.

As such the work will now move on to propose a theory of responsibility that satisfies the

above conditions and broadly meets the goals of both disciplines. Ultimately, the work contends

that Iris Young’s analysis of responsibility provides valuable insights for achieving this objective.

The next section will apply her understanding of responsibility to hypothetical and real cases of

ecocide that meets our four criteria from the preceding chapter.

But before we begin our analysis of Young’s conceptualization of responsibility it is

important to highlight that our employment of her theory is unorthodox and may even contradict

her intended objective. The reason for this as we will see, is that Young vehemently contends that

simply existing in a society, institution, or global order that permits wrongs is not enough to

justify individual responsibility for the harm (i.e., for Young one must have a more tangible and

direct connection to the harm); whereas our project aims at developing a conception of

responsibility that is both common, but differentiated (i.e., a theory of responsibility capable of

including everyone, but in divergent roles and to various degrees).

Nevertheless, the gap between Young’s aims and our own is unproblematic, so long it can

be demonstrated (i.e., the intended purpose of the remained of the chapter) that her theory can be

reframed to express a notion of responsibility that is both common and differentiated, even if

such an interpretation was not her intention. Thus, with this caveat in mind we can begin our

analysis and application of Young’s model of responsibility to instances ecocide.

II. Analyzing and Applying Iris Young’s Two-Tiered Model of Responsibility to Ecocide

Young in Responsibility for Justice argues that the concept of ‘responsibility’ ought to be

separated into two distinct kinds of models: (1) liability and (2) social connection (Young 2011).

I will briefly summarize both of these models before applying them to the topic of ecocide.

Young maintains that the liability model is the traditional framework by which we

conceive of legal and moral responsibility. Such an understanding of ‘responsibility’ as guilt,

blame, and/or liability is, “indispensable for a legal system and for a sense of moral right that

respects agents as individuals and expects them to behave in respectful ways toward others”

(Young 2011: 99). Essentially, the goal of the liability model is to hold particular agents

accountable for specific acts or omissions by which they have harmed identifiable others, i.e.,

providing retribution for localized harm(s) that upset normal background conditions.

Nevertheless, Young recognizes that there are limits to the liability model because not all

injustices can be directly linked to specific wrongful acts of particular agents, i.e., there are some

harms (as we have seen throughout the work, many environmental harms fall into this category)

that are, “produced and reproduced by thousands or millions of persons usually acting within

institutional rules and according to practices that most people regard as morally acceptable”

(Young 2011: 95). Young defines these kinds of social harms, which transcend the customary

bounds of responsibility found within the liability model as structural injustices. “When we

judge that structural injustice exists, we are saying precisely that at least some of the normal and

accepted background conditions of action are not morally acceptable” (Young 2004: 378).

Thus, the social connection model expresses the requisite notion of shared political

responsibility necessary for engaging with these sorts of unjust background structures (Young

2011). Unlike the liability model, the social connection model is focused on bettering

(futureoriented) the situation, rather than allocating blame (past-oriented) (Young 2011: 108-

109). Accordingly, in cases of structural injustice the social connection model maintains that

individuals are not guilty of wrong(s); but are instead responsible for improving the background

social conditions in which they interact (Young 2011: 105).

Nevertheless, it is important to emphasize that Young does not think that the social

connection model ought to replace the liability model, but instead it is designed to supplement it

(Young 2011: 174). According to Young, the liability model and social connection model should

be pursued in tandem as a means of complimenting each other and reinforcing the goals of

repairing, reconciling, and preventing injustice. As such, the adoption of a two-tier model is the

initial step in Young’s exploration of delineating kinds, classes, and degrees of responsibility

depending upon actors’ relations to social injustice, i.e., establishing differentiated responsibility.

One of the benefits of such a framework is that it offers a clear method of distinguishing

responsibilities between the past-oriented responsibility considered within the liability model and

future-oriented responsibility considered within the social connection model. Thus, achieving

one of the goals of the preceding section.

It is helpful to highlight that Young undertook this differentiating project as an attempt to

challenge Hannah Arendt’s claim that all Germans are “collectively responsible” for the

Holocaust, “simply by virtue of membership in a community and not according to more concrete

social relationships and actions” (Young 2011: 81). Young instead contends throughout her work

that simply existing in a society that permits wrongs is not enough to derive responsibility for the

harm; one must have a more tangible and direct connection. Hence, with the goal of

differentiation of responsibility in mind, the section will examine how Young’s two-tiered model

applies to the cases of ecocide delineated in the last chapter.

A. Outline for Applying Young’s Hierarchy of Responsibility to Ecocide

This section will explore Young’s attempt at differentiating responsibility for social

injustice to idealized cases of ecocide. In summary, relying on our previous analysis, it appears

there are four relationships that individual members of roving imperialist communities (i.e.,

unsustainable industrialized and post-industrialized societies that are productively and

consumptively integrated into global supply-chains) can have towards instances of ecocide: (1)

those who are guilty of ecocide; (2) those who are not guilty of ecocide, but who bear

responsibility because they participate in the society and provide guilty agents or harmful

background conditions with at least passive support that undergirds their capacity to cause

ecocide; (3) those who take action to distance themselves from the wrongs of ecocide, either

through efforts at privately preventing some of them or through forms of withdrawal from acts,

behaviors, habits, and institutions that generate environmental harm, and (4) those who publicly

oppose, resist, and alter the background institutions and practices that generate ecocide.176 Thus,

how her model can satisfy the standard of common (i.e., everyone – in a global sense - has a role

to play), but differentiated (i.e., to various degrees and in diverse ways) responsibility. 176 One

might consider excluding the last group from our taxonomy of responsibility for ecocide, since

they are adequately meeting their obligation. However, the work has opted to include them as a

category of responsibility because while they are currently satisfying their obligations as moral

actors; the social connection model’s future oriented conception of responsibility, entails that

actors must continue to engage in public opposition to structures generating injustice, i.e.,

responsibility is never fully discharged unless the unjust structures and outcomes cease. As such,

they still have an ongoing responsibility; and therefore, ought to be included in our taxonomy.

this section will investigate each of these relationships and examine how they impact agents’

responsibility for ecocide.

Afterwards, the work will explore some difficulties for achieving the ‘commonality

criterion’ by examining autarkic communities’ reparative and reconciliatory role in response to

ecocide. Essentially, there are two possible relations of autarkic communities to ecocide: (1)

victims of ecocide and (2) communities that have not experienced ecocide, i.e., they have not lost

their habitat due to environmental harm(s).

The analysis of autarkic communities that have avoided being impacted by ecocide is of

significant interest, in that according to Young’s model, if classes of actors have no direct

connection to injustices, then they have no responsibility to discharge. As such, there is the

potential that the existence of communities that have no connection (either as victims or

perpetrators) to ecocide may undermine the ‘common, but differentiated’ notion of responsibility

(i.e., because they will have no role to play in the reparative and reconciliatory process). This

determination is problematic, in that the preceding section asserted that CBDR was a crucial

component for achieving the aims of Transitional Justice and environmentalism. Furthermore, as

Kristin Shrader-Frechette argues, it is imperative that, “everyone ought to assume responsibility

for the actions of those who pollute, develop and threaten either the land or the most vulnerable

people on it” (Shrader-Frechette 2002: 4)

As such, special attention will be paid to these above-stated examples. Once again, it is

helpful to highlight that the reason these cases warrant heightened consideration is because: if

Young’s model is incapable of integrating such groups into our conception of responsibility,

some may argue it bars the framework from satisfying the ‘commonality’ component of the

CBDR principle, i.e., such a failure could be construed as demonstrating that Young’s account is

inadequate for fully articulating all the elements of Transitional Justice and environmentalism’s

preferred conception of responsibility.

B. Roving Imperialists’ Responsibility for Ecocide

1. Actors Guilty of Ecocide Under the Liability Model

Imagine a terrorist who hijacked and crashed a truck full of hazardous waste into a nature

reserve or a ranching tycoon who decided to illegally cut down a publicly protected rainforest to

expand his grazing acreage. Intuitively, it seems such actors ought to bear the highest level of

responsibility for these acts of environmental harm.

Fortunately, Young’s account supports precisely these determinations. Since, per her

framework actors are afforded maximal responsibility and fall within the purview of the liability

model if they are: (1) “causally connected” to the harm, (2) they acted “voluntarily” and (3) with

“adequate knowledge of the situation” (Young 2011: 97).

As such, it seems uncontroversial in the two hypothetical examples above that all of these

conditions have been met. Hence, baring discovery of additional excusing fact(s), the above

cases seem like straightforward examples of agents maximally responsible for the resulting

environmental harm.179 Consequently, we are justified in blaming and/or finding such agent(s)

guilty of harm under the liability model, i.e., their responsibility for the wrong has been isolated

and they deserve to be subject to moral judgment, civil sanctions, criminal punishment, and/or

general social redress.180

Nevertheless, cases of rogue ranchers or environmentally destructive terrorists acting

outside the law and against the general will are not the central focus of environmental

culpability hold true at a general intergroup-level of cross-comparative assessment, even if a

finer grained analysis could expose instances of the reverse, e.g., that some poor/black/women

pollute more than some rich/white/men. Essentially, these counterexamples demonstrate that

intragroup (within the group) vertical-analysis may show levels of culpability equal to or greater

than the culpability found in intergroup (between the groups) horizontal-analysis. But such a

statistical realization does not disprove that there are meaningful differences in intergroup

responsibility, thus justifying that our hypothetical ‘rogue rancher’ ought to be described as male.

179 Per our examples from last chapter, the liability model of responsibility could be applied

to Saddam Hussien and other high-ranking Iraqi officials that ordered the destruction of the

Ma’dan’s wetland habitat.

180 For example, Brazilian authorities arresting Ezequiel Antonio Castanha, (dubbed the

“king of deforestation”) for organizing gangs to clear large swaths of protected rainforest (i.e., it

is estimated that his activities account for upwards of 20% of all illegal deforestation in Brazil in

recent years) is a clear case of a state holding an actor accountable from within the liability

model for privately perpetrated environmental harm (Watts 2015).

transformative justice (even if their acts destroyed the habitat of an autarkic community). Since,

so long as the state met its duty of care to prevent such harms from occurring and effectively

provided punitive justice (i.e., criminal proceedings and punishment) and distributive justice

(i.e., welfare relief and aid) for impacted communities, then there is no justification for

demanding broader socio-political changes (i.e., advocate for Transitional Justice) in response to

these atrocities. Essentially, in such cases the state and public institutions do not appear

responsible for or incapable of repairing or reconciling with these types of privately perpetrated

wrongs and thus, there is no pressing need for radical social transformation, i.e., these represent

instances in which current social system(s), practice(s), and institution(s) are capable of

achieving justice.182

Since as argued in the last chapter, the need for environmental transformative justice is

triggered when the state acted directly or indirectly in support of ecocide or was negligent in its

duty of care to prevent the environmental harm from occurring. Thus in the above examples, the

need for environmental transformative justice is not met because the state did not act or failed

to act.

As such, our analysis will benefit from moving to more pertinent cases. For instances

when: the state contracted the rancher to clear the land; the state passed laws that permitted the

rancher to clear the land; the state failed to adequately enforce laws restricting these sorts of

harms; the state underfunded agencies setup to monitor, supervise, and restrict access to

protected lands; the state failed to respond to such harms in the past, etc.

Importantly according to Young’s model, guilt in each of these cases would not be limited

to the rancher because state actors involved in perpetuating the injustice would be liable as well.

For instance, if the rancher were a direct government contractor or employee, the rancher and

government official(s), who voluntarily approved the project with adequate knowledge of the

resulting harms, would be guilty of ecocide per the liability model. As such in this example,

responsibility would be spread diffusely throughout the state’s decision-making apparatus.

Young emphasizes precisely this point when discussing Adolf Eichmann, arguing that it

is possible that even if an actor is not the direct physical cause of harm, they can still be held

responsible under the liability model. “Because many of those farther away in the causal chain

made the decisions and gave the orders that drove the crimes, and their not having done so would

have meant that hundreds of thousands of people might have lived” (Young 2011: 82).

Accordingly, in this light, the rancher or official, who never lifted an ax or chainsaw, are

still liable as authors of injustice even if it was their employees and underlings who performed

all the physically destructive labor. What matters for the liability model is that the agent is a

primary party (i.e., causally and intentionally paramount) that could have acted otherwise to

prevent the harm(s), i.e., the rancher or official could have decided against ordering to cut down

the forest (Young 2011: 84). As such, the liability model offers an effective framework for

holding the decision-makers (i.e., those who craft, determine, and execute policies) of roving

imperialist communities accountable for ecocide.

Consequently, the notions of volition and control are extremely important for determining

responsibility using the liability model. For instance, if an official who authorized the project to

clear the land acted under duress because the mafia was threatening to murder her kidnapped

children unless the project was approved, then the official can be excused from responsibility

under the liability model because her act does not seem voluntary.186 Nonetheless, such a

conclusion seems unproblematic and is supported by the fact that moral and legal codes are filled

with a litany of excusing principles, which can be used to absolve actors (even if they are the

proximal physical cause of the harm) of liability for wrongs, e.g., if the act was an accident,

mistake, or inadvertent; if the act occurred as a result of reflex or unintended body movement; if

the actor was restrained or pushed to act through external physical interference; or if the act was

forced under threat, coercion, duress or necessity; etc., then the actor can be excused from blame

(Strawson 1962).

Accordingly, it is possible that the rancher’s employees whose actions are the proximal

cause of the destruction of the forest, may nevertheless, be excused of responsibility under the

liability model, i.e., if it can be shown that the workers had a restricted range of options to

choose from. For instance, imagine a situation in which the rancher is the only available

employer in the area, the workers’ meager wages are the sole means of providing for their

families, and they are so destitute that they are unable to afford to relocate.187 Under such

conditions, in which their options are limited to either: (1) follow the rancher’s orders or (2) be

fired and unable to earn enough to survive; a strong argument can be made that the workers’ lack

of viable options excuses them from guilt under the liability model.

187 Sadly, such circumstances are common in poor rural communities, e.g., as CNN reported

during a 2017 expose investigating how thousands are forced to work as slaves on cattle ranches

in northern Brazil, “if you want a job, you have to head to one of the nearby cattle ranches, [but

once there] you can’t leave because you owe money for the food [the rancher] has given you,

you have a debt…and don’t receive any form of salary because…food and tools are deducted

from wages” (Darlington, Charner, and Castro 2017). Furthermore, it is estimated that over

60,000 laborers are trapped in similar systems of bondage slavery in the Brazilian cattle ranching

industry alone (Maisonnave and Gross 2017).

Thus, per the Youngian framework, this and similar cases move the analysis in the

direction of the next level of responsibility for ecocide, i.e., actors who are not guilty or

blameworthy of ecocide, but who bear responsibility because they participate in the roving

imperialist society and provide the guilty agents or harmful background conditions with at least

passive support that undergirds their capacity to cause ecocide. But before we move on to the

next level of analysis it is helpful to highlight, regarding the discernment of responsibility for

ecocide, that the liability model effectively captures that decision-makers (i.e., actors

intentionally pursuing, advocating, and commanding environmentally destructive operations and

policies) are most causally accountable (i.e., they are the but for cause); and thus, deserve the

greatest degree of blame for resulting harms.

2. Actors Not Guilty of Ecocide But Responsible Under the Social

Connection Model

Once again consider the ‘rogue rancher’ example, in this case there are many potential

actors whose participation played a role in providing the rancher with the ability and capacity to

destroy the forest; nevertheless, it may seem strange to consider them blameworthy or guilty of

ecocide. For instance, we have already mentioned the destitute laborer that was compelled to

follow the rancher’s orders to clear the forest as a matter of economic survival. But there are

many other potential upstream actors, e.g., chainsaw and ax manufacturers; the overworked

police force that was unable to monitor the property; the ranchers’ family who provided him with

unconditional support and confidence to act outside the law; the banker who loaned him the

capital to buy a new bulldozer that was necessary to clear the dense forest, etc. Also, there exist

potentially countless downstream beneficiaries who maybe entirely unaware of the rancher’s

nefarious deed, e.g., the consumers who can buy cheaper beef; the owner of the industrial

refrigeration company that was able to make a profit by storing the meat; the slaughterhouse

employees that were able to keep their jobs because of increased inventory; the finance minister

who was applauded for increased exports; the shipping and packaging companies’ shareholders

who saw a slight uptick in their respective investment portfolios, etc.

Obviously, there are borderline cases, wherein it will be difficult to determine whether or

not an actor is complicit in the harm. But roughly for our purposes, an actor is considered

complicit and falls within the liability model if they intended the consequence of the action, e.g.,

a neighbor who volunteers to help the rancher by providing room and board to the workers in

exchange for a share of the illicit profits. Whereas, an actor is not complicit if they simply

intended to participate in the group activity unconcerned with the outcome, e.g., a neighbor who

offers room and board to the workers strictly out of loneliness.

Nevertheless, it is evident from the ‘rogue rancher’ example that there exists a multitude

of potential actors that ought to be excused from guilt under the liability model even though it is

unambiguous that they contributed and benefited from processes that produced ecocide (Young

2011: 100). Furthermore, in this situation it is plausible to imagine that many of the actors never

intended to cause ecocide or might even regret and wish to undo their contribution if they knew

the role they played caused harm.

The preceding section analyzed a scenario where the rancher acted at the behest of the

state, in which liability for the environmental harm circulated beyond the rancher to include state

official(s) who authorized and requested the rancher’s services. This section will focus on

analyzing instances in which the rancher acted within socially and legally acceptable parameters

(i.e., only clearing his private property), but the state was not directly involved.

We can imagine a scenario in which the rancher legally cleared his own land, with no

intention of destroying an autarkic community’s habitat; but unfortunately and unbeknownst to

him, the ecological toll of his and numerous other legal and commonly taken actions (other

ranchers legally clearing their private property) led to the total ecological collapse of the

surrounding forest (i.e., the ecosystem inhabited by an autarkic community). In many ways, this

revised example represents the quintessential case of structural injustice; in that no one (not even

the rancher) intended the negative outcome to the autarkic community; but yet the confluence of

background conditions and the actors’ socially acceptable behavior caused ecocide.

Young explains that the failure of the liability model in these and similar cases of

structural injustice, “is that structures are produced and reproduced by large numbers of people

acting according to normally accepted rules and practices, and it is in the nature of such

structural processes that their potentially harmful effects cannot be traced directly to any

particular contributors to the process” (Young 2011: 100).

The fact that structural injustices are such a pervasive feature of the modern world

(particularly with regards to environmental harm) makes it exceedingly problematic that the

liability model is unable to delineate responsibility for correcting them. Unfortunately, it seems

entirely likely that structural injustices will continue to occur indefinitely unless we adopt a more

inclusive conception of responsibility that makes actors feel obligated to alter behaviors that

generate background conditions that perpetuate these harms.192

As such, it is vital that we devise a framework capable of delineating responsibility for

actors who are not guilty of ecocide; but who nevertheless, bear responsibility because they

participate in the society and provide the guilty agents or harmful background conditions with at

least passive support that undergirds their capacity to cause ecocide. Fortunately, Young’s social

connection model provides a perfect account for delineating responsibility in these cases.

As previously demonstrated, many of the actors in the various ‘rancher examples’ are not

liable for the ecocide, but they do bear some responsibility in that they benefited and contributed

climate change) in which the activity (i.e., burning fossil fuel) has no obvious similarity to the

harm (e.g., sea-level rise, desertification, etc.).

192 As Roman writer, Publilius Syrus, famously stated, “we tolerate without rebuke the vices with

which we have grown familiar” - if this is true, then turning a blind-eye to endemic harms is

tantamount to passive acceptance of injustice. Thus, as a means of overcoming this worry, the

work is striving to develop a conception of environmental transformative justice to awaken us to

the injustice of ecocide.

to the harm, i.e., they are relevantly connected to the problem. Young contends that moral-actors

upon recognizing their proximity and relation towards a wrong will feel compelled to answer for

the harm (Young 2011: 121). As such, this sense of ‘responsibility’ functions as a virtue, i.e., as a

personal desire to, “carry out activities in a morally appropriate way” motivated by the sentiment

that “all who dwell within the structures must take responsibility for remedying injustices they

cause” (Young 2011: 104-105).

Succinctly, the social connection model attempts to establish a virtue-theoretic

conception of responsibility (whereas, the liability model relies on a deontic conception of

responsibility), in which actors feel an internal motivation, desire, and disposition to better the

institutions and practices in which they partake. But before proceeding, it is important to

highlight that the social connection model’s reliance on a virtue theoretical approach to

responsibility is pertinent to the work’s later attempt to demonstrate that Young’s account

satisfies the ‘commonality’ criterion of the CBDR principle.

In summary, the social connection model emphasizes that individuals who benefit or

contribute to institutions or social practices that cause ecocide have a responsibility to work

towards alleviating the problem. This sense of ‘responsibility’ is not isolating, in that finding out

that countless other actors are involved in causing the harm does not discharge an agent whose

actions contributed to the outcome from taking responsibility (Young 2011: 106). As such, the

social connection model calls for common responsibility, “it follows that all those who contribute

by their actions to the structural processes that produce injustice share responsibility for those

harms” (Young 2011: 109).

Furthermore, the social connection model is not focused on blame (past-oriented); it is

instead oriented towards improving the future (Young 2011: 109). Finally, ‘responsibility’ under

the social connection model can only be discharged through shared public action (meaning

working together, not in the sense of necessarily having to form a group-agent, even though that

would be a viable option). As Young explains, “thousands or even millions of agents contribute

by our actions in particular institutional contexts to the processes that produce unjust outcomes.

Our forward-looking responsibility consists in changing the institutions and processes so that

their outcomes will be less unjust. No one of us can do this on our own” (Young 2011: 111).

Ultimately, the social connection model’s notion of ‘responsibility’ as future-oriented,

non-isolated, and only dischargeable through political action is incredibly important for

combatting environmental harm. The reason for this is that many of the contributing factors (e.g.,

climate change, ocean acidification, biodiversity loss, etc.) causing environmental injury

worldwide are unintended consequences from generations of diverse actors maintaining and

expanding social dependence on unsustainable industrial mass production and consumption.

Thus, no current set of actors is wholly to blame (per the liability model) and continuing to point

fingers will only result in greater resentment, defensiveness, and animosity; when instead, what

we need is a united and sustained cooperative effort to combat the problem(s).

As we have seen, the social connection model’s inclusion of actors who are not guilty of

harm, but who still bear responsibility because of their participation in or benefit from actions

that caused the harm, creates a spectrum of responsibility exceeding the liability model’s binary

account of guilt or innocence. As such, in the ‘structural injustice rancher’ example (i.e., where

no actor intended the destruction of the autarkic community’s habitat) no one is guilty under the

liability model, but many parties have a responsibility to discharge per the social connection

model.

Thus, to show how the two models work together, it is illustrative to once again return to

the ‘rogue rancher’ example. In this case, the rancher would be guilty of ecocide under the

liability model and ought to face punitive and retributive justice measures (i.e., criminal

punishment and social sanction). Nevertheless, as discussed, there are countless upstream and

downstream actors that are connected as beneficiaries and/or enablers of the rancher’s ecocidal

activity; but yet, are not guilty under the liability model because they lacked ‘elbow room’ to

have acted differently or they had no intention or knowledge of causing harm. But fortunately,

the social connection model offers a framework capable of justifying why these upstream and

downstream beneficiaries and enablers ought to take responsibility for repairing and reconciling

the wrongs.

Thus, the social connection model allows us a fuller recognition of the ubiquitous

responsibility for ecocide in roving imperialist societies; since the culture, modes of subsistence,

and way of life rely heavily on activities that degrade and destroy autarkic communities’ habitats.

And as Young states, “beneficiaries of the process, have responsibilities. Their being privileged

usually means, moreover, that they are able to change their habits or make extra efforts without

suffering serious deprivation” (Young 2011: 145). Consequently, one can reasonably argue that

whoever is actively answerable for establishing, maintaining, benefiting, and/or participating in

the roving imperialist social order (i.e., the vast majority of actors in industrial or post-industrial

societies) bear some responsibility under the social connection model for correcting and

preventing ongoing environmental injustices.

More specifically, if it is true that globalized industrial mass production and consumption

is damaging to the environment (which seems certain), then actors relying on the large-scale

supply-chains and non-sustainable practices to satisfy their needs, are at least partially

responsible for environmental degradation. With that being said, we can move on to analyzing

the next level of responsibility for ecocide, i.e., individuals living in roving imperialist societies

who take action to distance themselves from the wrongs of ecocide, either through efforts at

privately preventing some of them or through forms of withdrawal from acts, behaviors, habits,

and institutions that generate environmental harm.

3. Actors Distanced From Wrong But Responsible Under the Social

Connection Model

Returning to the ‘structural injustice ranching’ example, in which the rancher had no

intention of causing ecocide, but unfortunately and unbeknownst to him, the ecological toll of his

and numerous other legal and commonly taken actions led to the complete ecological collapse of

the surrounding forest. In such a case, we can imagine actors taking steps to distance themselves

from the harm, e.g., an owner of a slaughterhouse deciding not to purchase cattle from ranchers

that graze on newly cleared land; an environmental activist writing letters to ranchers explaining

and condemning the environmental impact of their activities; employees recognizing the

potential environmental harm and conscientiously objecting by quitting their job rather than

following the rancher’s order, etc.

In all of these examples, we see actors taking morally laudable steps to privately distance

themselves from the harm, but the problem is that in-and-of-themselves none of these actions

will likely prevent the present (or similar future-cases of) ecocide from occurring. The failure

stems from the fact that none of these acts alter the underlying background structure(s) that

enabled the harm to occur in the first place, e.g., the rancher will be able to make a profit selling

his cattle to another slaughterhouse, in spite of the one abstaining owner; the rancher can ignore

the letter and the destruction will continue unabated; even if employees quit, the remaining

excess labor force can be hired to carry out the task, and lastly, at least in the ‘structural injustice

rancher’ example, even if the rancher does stop clearing the land, the combined impact of other

ranchers’ activity will still cause ecological collapse (but this would not necessarily be the case

in the ‘rogue rancher’ example).

Thus, as illustrated, private acts while commendable from a moral standpoint, achieve

little in terms of stopping, preventing, or diminishing structural harms. As Arendt states, such

acts, “practically speaking, did nothing” as they leave the offending structures in place (Arendt

1963: 104). Interestingly, if an actor was powerful enough to independently prevent the structural

injustice (i.e., alter the background condition) via their own private action, then a case could be

made that their failure to do so implies guilt under the liability model. Thus, for our purposes we

can assume that in the above example none of the actors (or potentially any actor) are powerful

enough to stop the structural injustice on their own (as the definition of ‘structural’ implies).

As such, the evident failure of private action justifies the social connection model’s claim

that what is necessary to prevent structural injustices from occurring is shared public action, e.g.,

the slaughterhouse owner could try and convince the slaughterhouse industry to unite in

boycotting the processing of cattle grazed on newly cleared land, in the hopes of undercutting the

profit motive driving the ranchers’ decision to clear the land in the first place; the activist could

work towards convincing bulldozer manufacturers to stop selling to ranching operations; the

employees could campaign to increase public funding for scientific research, education, and

awareness regarding the environmental impact of ranching activities, etc. Thus, these and similar

combined public activities that change the socio-political practices, institutions, and norms in

roving imperialist societies would have a greater chance of successfully preventing ecocide.

Intuitively, it seems correct that if an actor recognizes something as wrong; then

distancing oneself from the harm does not seem to discharge responsibility, i.e. if we view

something as unjust, our responsibility ought to be to prevent it from occurring instead of simply

removing ourselves from contributing to the problem. Walter Sinnott-Armstrong highlights this

point in his discussion of environmentalists’ personal responsibility regarding climate change:

Some environmentalists keep their hands clean by withdrawing into a simple life where

they use very little fossil fuels. That is great. I encourage it. But some of these escapees then

think that they have done their duty, so they rarely come down out of the hills to work for

political candidates who could and would change government policies. This attitude helps

nobody. We should not think that we can do enough simply by buying fuel efficient cars,

insulating our houses, and setting up a windmill to make our own electricity. That is all

wonderful, but it neither does little or nothing to stop global warming, nor does this focus

fulfill our real moral obligations, which are to get governments to do their job to prevent the

disaster of excessive global warming. (Sinnott-Armstrong 2005: 312)

Sinnott-Armstrong insightfully illustrates and supports the social connection model’s

assertion that discharging responsibility necessitates shared public action designed to alter

background social structure(s) in an attempt to prevent or ameliorate injustice(s) from occurring

in the future. Since as Derrick Jensen and Lierre Keith insightfully assert, “the role of an activist

is not to navigate systems of oppressive power with as much integrity as possible, but rather to

confront and take down these systems” (Jensen and Keith 2012: 424).

Accordingly, agents who engage in this kind of shared public activity represent the final

and least culpable relational-level of responsibility towards structural injustices. Thus, in the case

of roving imperialist societies the only individuals adequately discharging their responsibility for

ecocide are those that publicly oppose, resist, and alter the background institutions and practices

that generate environmental harm.

4. Discharging Responsibility Under the Social Connection Model

But what level of political engagement is required of an actor to adequately discharge

their responsibility? For instance, does an actor discharge their responsibility if they take part

only once in a public protest resisting the social structures, institutions, practices, and policies

that are generating ecocide? Young would likely hold that this meager level of engagement is

inadequate and instead argue that what is required is for actors to take part in ongoing and

consistent shared public efforts to alter and end practices that they participate in that generate

injustice. As she states, “one has the responsibility to do whatever it takes to bring about specific

ends or purposes” (Young 2011: 143).

However, one might object that in the case of an injustice as widespread and pervasive as

ecocide it seems outlandish, farfetched, unrealistic, and absurd to claim that actors are

responsible for altering the systems causing the harm, especially considering the current global

dominance of industrial mass productive and consumptive societies. Nevertheless, Young

accepts that many of our moral obligations may appear daunting, “some people might take this

line of discussion as a reductio ad absurdum. If your theory of responsibility faces me with tasks

bigger than I can fathom, then your theory must be wrong” (Young 2011: 143). However, she

does not acquiesce and rebukes such criticisms by asserting, “that in a very unjust world [such as

ours, with regard to ecocide], such an attitude is overly conservative and allows most of us to tell

ourselves complacently that we are doing what we can and all that can be expected of us to

improve things” (Young 2011: 123-124).

Additionally, she defends her position by claiming that the social connection model’s

virtue theoretic, commonly shared, and forward-looking features make it more manageable than

one might have first presumed (Young 2011: 142-144). She argues that while actors do bear

responsibility for altering unjust systems that they participate in; they nevertheless, do not bear

this responsibility alone, in that all actors involved share similarly in responsibility.

Also, since the social connection model does not hold actors guilty or blameworthy of

past wrongs, they have no putative duties or required acts of penitence. As such, they have

greater discretion to decide how to conduct themselves with the aim of publicly combating the

injustice given their abilities, circumstances, and competing moral concerns.

Finally, because the model recognizes that it is always uncertain if actors will be able to

achieve their objectives. The framework accepts that good intentions, aspirations, and efforts to

work together to alter unjust social practices are morally laudatory and efficacious in-and-

ofthemselves, regardless as to whether the projects lead to imperfect results. Consequently,

failure to end an injustice is not necessarily tantamount to shirking one’s moral responsibility, so

long as good faith attempts to rectify and redress the problem continue to be made.

As discussed, the social connection model arouses actors’ sense of responsibility to

combat injustice by appealing to their desire to be morally virtuous and their concern for the

plight of others. But as such, it leaves much of the normative decision-making up to the actors

themselves to determine what level of participation appeases their conscience. Nevertheless, the

framework is not entirely self-motivated in that it allows for and endorses criticizing actors for

not adequately involving themselves or being ineffective and counterproductive in their efforts to

improve or end unjust systems they are connected with. As Young says, “we have a right and

obligation to criticize others with whom we share responsibility” (Young 2011: 144).

At present, it is unnecessary to delve further into determining what levels of involvement

are adequate for discharging responsibility for ecocide. Since, the next chapter will explore the

topic at length, as the work examines the sort of social principles, structures, and institutions that

actors should strive to publicly promote in order to prevent, mitigate, and repair the injustices of

ecocide, i.e., discuss the content of environmental transformative justice.

Thus, in conclusion, we have seen that Young emphasizes actors’ “social position” in

relation to injustice(s) as the central criterion by which her model accounts for differentiated

responsibility. Nevertheless, is it possible for an actor to have no relation to the harm of ecocide

and as such, no responsibility to discharge? As we have argued it seems unlikely that any

individual member of roving imperialist society would satisfy this condition (as their basic way

of life intrinsically generates environmental destruction), but what about autarkic communities

that have never participated, benefited, or have any interest in maintaining processes of

nonsustainable industrial mass production and consumption – do these groups still have

responsibility to discharge regarding ecocide?

This question is of significant concern for the CBDR principle because if an actor has no

responsibility to discharge, then one can argue that Young’s model does not satisfy the criterion

of ‘commonality’ (once again meaning everyone has a role to play) embraced in contemporary

environmentalism.201 Thus, to foreclose this argument the work will endeavor to prove that the

model of responsibility endorsed is maximally broad, in that it has the capacity to include all

actors.

institutions actors should strive to publicly promote in order to prevent, mitigate, and repair the

injustices of ecocide, i.e., discuss how to achieve environmental transformative justice. 201 To

reiterate, Young would likely conclude that autarkic communities that bear no relation to ecocide

would have no responsibility to discharge. But our work seeks to show how her theory can be

employed (i.e., contrary to her own objective) to draw the opposite conclusion as a means of

satisfying the ‘commonality’ criterion of the CBDR principle.

Nevertheless, some may worry that it is overly ambitious, unnecessary, and controversial

to argue that the ‘commonality’ criterion of the CBDR principle entails potentially including all

actors and that it would make more sense to limit the criterion’s applicability to groups of

individuals that are causally linked to ecocide. However, while such an undertaking maybe

burdensome, if it proves successful, we are rewarded with a model of responsibility that

forecloses the objection that the ‘commonality’ criterion has not been met. Additionally, such an

inclusive framing of responsibility for ecocide is capable of appealing to and satisfying the

popular and pervasive environmental sentiment that each of us has a role to play in confronting

environmental degradation. Thus, to explore this topic we will investigate the responsibility of

autarkic communities to combat ecocide.

C. Autarkic Communities’ Responsibility for Ecocide

Referring back to last chapter, we can imagine autarkic communities’ whose habitat were

destroyed through no fault of their own by ecocide (e.g., the Anangu, Wayúu, and Cree and Afro-

Colombian villages). Obviously in these scenarios, the autarkic communities are victims of

ecocide having lost their traditional way of life and ancestral home. Yet nonetheless, per the

social connection model, victims have a responsibility to discharge.

1. Autarkic Victims and Responsibility

After instances of victimization one might find it strange to claim that the members of

autarkic communities have a responsibility to discharge. But Young’s theorization of the social

connection model draws exactly this conclusion. She argues that even if victims did not

contribute to the injustice, they still have an interest in the issue (i.e., their own well-being) and

that interest in-and-of-itself constitutes a relation to the harm that ought to be discharged through

shared public action. “Even if they don't [contribute to the harm], victims of injustice should take

some responsibility for challenging the structures that produce it. It is they who know the most

about the harms they suffer, and thus it is up to them, though not them alone, to broadcast their

situation and call it injustice” (Young 2011: 146).

Therefore, in the case of victimized autarkic communities (i.e., situations in which they

are entirely innocent and contributed nothing in causing the environmental injustice), they still

have an interest in ameliorating the harm; and thus, Young argues they should take shared public

action to discharge this responsibility. Understandably, in these situations there exist potentially

immense practical challenges inhibiting the autarkic communities’ ability to undertake political

action to redress ecocide; in that they have lost their habitat, way of life, and lack connection to

and knowledge of domestic, international, and global power structures.

Nevertheless, victims do have first-hand experience of the environmental damages(s)

they suffered and thus, can best understand their specific grievance(s) and appreciate their

particular reparative and reconciliatory need(s). It is for this reason that the social connection

model maintains that even victims who contributed (created, maintained, participated, and/or

benefited) nothing to an injustice still have a responsibility to take action, i.e., to bring the harm

to public consciousness. But what about autarkic communities that were able to avoid suffering

ecocide, do they still have responsibility to discharge per the social connection model?

2. Non-Harmed Autarkic Communities and Responsibility

Unlike in the prior ‘victimization’ case, unaffected autarkic communities are not even

connected to ecocide as victims. Furthermore, we can envision scenarios in which, their

traditional way of life has successfully enabled them to protect, maintain, and preserve their

habitat in spite of the ongoing and growing global environmental crises. Hence, in these

‘ecological stewardship’ cases it is possible that the autarkic communities are unaware of the

threat of ecocide or of their role in protecting their habitat from harm. Thus, for these reasons,

‘ecological stewardship’ cases involve situations in which actors are living as far removed as

possible from non-sustainable modes of subsistence (i.e., systems of unsustainable globalized

industrial mass production and consumption) and thereby are maximally disconnected from

environmental wrongs.

Hence, cases of ‘ecological stewardship’ present the social connection model with actors

least responsible for discharging responsibility for ecocide, in that these successful autarkic

communities did not contribute, benefit, nor were they even harmed by environmental

degradation. As such, is it possible for the social connection model to justify that these

communities have forward looking responsibility to discharge in the absence of any relation to

environmental injustice?

To answer this question, we must analyze the four forward looking parameters that Young

provides to justify actor’s responsibility to redress injustices occurring within the “global

society” – power, interest, privilege, and collective ability (Young 2011: 144). We can quickly

disregard the last parameter - ‘collective ability’ - as it is dependent on pairing with at least one

of the other parameters to motivate the group’s involvement in redressing injustice. As such, the

rest of the section will briefly apply the three remaining parameters (‘power’, ‘privilege’, and

‘interest’) to the ‘ecological stewardship’ case (i.e., the most challenging example for

demonstrating actors responsibility for redressing environmental harm) in an attempt to

determine if the social connection model has the potential to justify a common responsibility for

combatting environmental ills that can be applied to all, i.e., conclusively confirm that the model

satisfies the ‘commonality’ criterion of the CBDR principle.

The first parameter to evaluate is power, which Young defines as, “influence over

processes that produce outcomes” (Young 2011: 144). Since, by definition autarkic communities

are uninvolved in global mass industrial production or consumption, they are epistemically and

practically distanced, lacking knowledge and involvement with the processes and procedures

producing environmental harm and as such are ill-suited to influence and shape them. Thus, the

parameter of ‘power’ is unable to provide a necessary connection between the autarkic

communities and environmental injustice(s) requiring redress.

One might be tempted to argue that the autarkic communities have the power to protect

their own habitat, thus they have a responsibility to continue their traditional lifestyle. But this is

not an expression of ‘power’ per the model, since the group’s maintenance of their customary

traditions and practices does not directly alter or influence the background processes and social

structures generating environmental harm.

The second parameter to consider is privilege, which Young describes as an actor’s

ability, “to change their habits or make extra efforts without suffering serious deprivation”

(Young 2011: 145). Since, autarkic communities lead highly habituated lifestyles committed to

preserving their customary relationship with their local environment they clearly lack ‘privilege’

per Young’s account, in that any alteration to their way of life (i.e., changes to their traditional

patterns of behavior) could result in serious loss of wellbeing. Accordingly, autarkic

communities do not occupy a ‘privileged social position’ and therefore, in this case the parameter

does not foster responsibility for redressing environmental harms.

Finally, regarding the parameter of interest, we have already stipulated that in the

‘ecological stewardship’ case it is conceivable that autarkic communities may be unconcerned

(or more likely unaware) regarding environmental harms that do not impact their local habitat.

Nevertheless, one might be tempted to assert that autarkic communities have an interest in

altering social structures, relations, and institutions causing environmental harm tout court.

Essentially, the argument relies on an assumption that if environmental degradation is permitted

to continue unabated, then it will eventually impact the autarkic communities’ habitat. But this

claim is dubious, (leaving aside the fact that autarkic communities might be unaware of the

crises) in that their traditional engagement with their habitat has already proven to be resilient.

As such, the premise – ‘that autarkic communities’ habitat will inevitably be affected by external

environmental degradation’ - seems uncertain. Accordingly, if it is the case that such groups can

independently sustain their habitat and way of life, then it is possible that they would have little

interest in altering their behavior or concern for broader environmental harms to which they are

wholly unconnected or affected. Furthermore, if they were unable to continue to preserve their

ecosystem, then by definition they would no longer be ‘ecological stewards’ and as such, could

easily be situated within Young’s model as either victims, beneficiaries, contributors, or

perpetrators depending upon their involvement in the environmental degradation impacting their

habitat - as our previous discussion has illustrated.

Consequently, the above analysis of ‘ecological stewardship’ cases offers a hypothetical

class of actors with no relationship to ecocide per Young’s interpretation of the social connection

model. Hence in the potentiality that such communities exist, Young would likely assert that the

social connection model would be unable to link these peoples to environmental harms and as

such, they would be exempt of responsibility (even from within her rather expansive conception

of responsibility) for redressing these injustices.

Immediately, one might argue that this result is unproblematic and does not violate the

‘commonality’ criterion of CBDR principle because at least at present, these communities (if

they exist) represent such a small minority of the people inhabiting the planet that it makes no

substantive difference (in that they do not cause or are impacted by ecocide) if they are excluded

from responsibility. However, this retreat is conceptually unsatisfying, since the stated objective

is to show that the theory of responsibility under consideration is flexible enough to demonstrate

that all people potentially have a role to play in response to environmental injustice.

Consequently, and contrary to Young’s stated application of her theory, the work contends that

unconnected ecological stewards can be integrated into her model of responsibility. Once again,

the reason such a conclusion is of interest is because it demonstrates that the framework is able

to unconditionally satisfy the ‘commonality’ component of the CBDR principle in cases of

ecocide. Essentially, the work argues that unconnected ecological stewards have an important

responsibility (i.e., have a role to play) in redressing environmental injustices

per the social connection model in their role as environmental heroes.

The key insight necessary to reach this conclusion is recognizing that Young failed to

fully consider or articulate the virtue theoretic aspect(s) of her account. As previously explained,

the social connection model is virtue-theoretic, in that it relies on actors’ motivation and

disposition to strive for moral excellence by embracing their responsibility to improve

institutions and practices in which they partake. But as Linda Zagzebski explains, the process of

identifying and developing virtuous motivations and dispositions requires moral exemplars. “We

do not have criteria for goodness in advance of identifying the exemplars of goodness”

(Zagzebski 2004: 41). Hence, the social connection model tacitly relies on the existence of heroic

actors displaying qualities, behaviors, and habits that others can admire and emulate, i.e., the

model requires commendable acts and actors that push social boundaries and transcend the

established status quo.

As such, unconnected ecological stewards by continuing their traditional lifestyle

represent exemplars of environmental heroism, in that they demonstrate (potentially

unbeknownst to them) sustainable ways of life, which are far less environmentally destructive

than extractive and exploitative materialism practiced by roving imperialists (i.e., the currently

dominant mode of subsistence). Autarkic communities’ customary engagement with their habitat

offers a tangible reimagining of social structures and modes of sustainable subsistence, i.e., they

provide a concrete vision for devising innovative practices and institutions to prevent, mitigate,

and repair environmental harms that are severely lacking in contemporary society.

Heightening the need for unconnected ecological stewards to play the role of

environmental heroes (even if it is unbeknownst to them) is the fact that there is a dearth of

environmentally sustainable ways of life within the dominant global order. Therefore, without

unconnected ecological stewards, the social connection model would be lacking in virtuous

exemplars (i.e., communities living sustainably within their habitat) to inspire, demonstrate, and

guide change to the social practices, behaviors, institutions, norms, and values generating

environmental harm. Thus, in this sense, even unconnected ecological stewards in their role as

potential environmental heroes play an important part in the application of the social connection

model’s virtue-theoretic approach to redressing ecocide. Furthermore, there is no undue burden

placed upon these communities, since their responsibility is discharged simply through

maintaining their sustainable way of life.

Consequently, emphasizing the virtue-theoretic aspect of Young’s account illuminates a

path by which the model satisfies CBDR’s criterion of ‘commonality’ even in the ‘ecological

stewardship’ case, in that it establishes a way in which all peoples and communities have a role

to play in combatting ecocide. The hope is that this discussion has demonstrated that Young’s

model represents a coherent articulation of the principle of CBDR, in that it satisfies both the

‘common’ and ‘differentiated’ criteria.

Therefore, at this point, we have demonstrated that Young’s theorization of responsibility

meets both the ‘common but differentiated’ and ‘backwards and forwards looking’ criterion that

broadly meets the goal of both environmentalism and Transitional Justice. As such, the last

element necessary for confirming that Young’s account is capable of satisfying the aims of both

disciplines is to prove that her conception of responsibility is capable of including a broad set of

social entities.

D. Young’s Model as a Socially Capacious Conception of Responsibility

Throughout the section, we have focused on individual responsibility, but conceptually it

seems rather straightforward that the liability and social connection model are both readily

amenable to including any sort of legal person (i.e., natural persons and group-agents) within

their respective frameworks; which, as discussed in the preceding section, is required for an

adequate and effective conception of responsibility capable of satisfying the aims of both

Transitional Justice and environmentalism.

For instance, instead of focusing on the guilt of the rogue rancher, we can concurrently

stipulate that his company, Rogue Ranching Inc., was collectively liable for the illegal clearing

of the forest, and thus, ought to face punitive and retributive social sanctions (e.g., fines,

mandatory reforms, forced closure, etc.). Moreover, the liability model of responsibility applies

to states, in that when states violate international law they can be blamed, held accountable, and

sanctioned for illicit activity by the international community (which we saw in our analysis of

Transitional Justice). Accordingly, once corporations, states, and individuals are considered

accountable per the liability model, then there appears to be no sound basis for restricting other

types of group-agents (e.g., NGOs, municipalities, social clubs, etc.) from being blamed for past

wrongs.

Additionally, the social connection model is capable of integrating corporations, states,

NGO’s, etc., in that the same virtue-theoretic motivations that applies to individuals (i.e., to

strive for moral excellence by embracing their responsibility to take steps to better institutions

and practices in which they partake), can be applied to group-agents. However, one might argue

that the virtue-theoretic ‘motivations’ of group-actors are products of collaborative efforts and

sentiments of the individuals comprising the group, i.e., that agency in collectives reduces down

to the individual agency of the individual actors making up the collective.

Therefore, such an analysis stipulates that fundamentally, the social connection model is

limited to individual responsibility, since the governance and decision-making of collective

organizations always reduces down to the choices of individuals within them. But as has been

discussed, such a view is discredited, in that social ontology and rational choice theory have each

demonstrated that group-agents often take on a causal life of their own, i.e., their prior decisions

may dictate courses of action that are contrary to the subjective preferences of the individuals

that make them up. Thus, there are situations in which the group-agent’s aims and aspirations

diverge from the subjective wishes of the group members, i.e., sometimes groups demonstrate

emergent behavior that is irreducible to the individual preferences of the members compromising

them. Accordingly, it is possible that the group-agent - itself - may decide to strive for moral

excellence by taking action to better the institutions and practices in which they engage; thus,

satisfying the virtue-theoretic aims of the social connection model.

Obviously, the actions, policies, and changes group-agents ought to take in response to

ecocide per the social connection model are distinct from those required of individuals (i.e.,

natural persons). For instance, holding Exxon responsible for an oil spill, does not mean that

individual employees (in-and-of-themselves), should begin cleaning up the spill regardless of

their role in the company, e.g., the accounting department should don HAZMAT suits, wade into

the impacted area, and start scrubbing oil off plants and animals.

Essentially, group-agents must act as morally unified plural-subjects and we will delve

into precisely what this obligation entails in the next chapter. But for now, it is important to stress

that we have demonstrated that Young’s account is amenable to a socially capacious conception

of responsibility that meets the goals of both Transitional Justice and environmentalism. Hence,

the section has illustrated that Young’s account can be interpreted as (1) common, but

differentiated, (2) both backward and forward looking, and (3) socially capacious; and as such, it

offers a framework for satisfying the requisite elements stipulated in the preceding section as

necessary for both disciplines’ conception of responsibility.

Thus, in conclusion, the work has offered an adequately developed conception of

responsibility for ecocide, i.e., one that is persuasive, politically useful, reasonably acceptable to

the parties involved, and counters harmful and obscuring ideologies that disguise accountability

(both over-inclusively and under-inclusively) for environmental harm. Furthermore, the notion of

responsibility has been designed to satisfy the needs of both Transitional Justice and

environmentalism, as a means of seamlessly facilitating each discipline’s ability to draw upon

and utilize potentially valuable conceptual insights and practical tools from the other when

confronting ecocide.

With these objectives met, a subsequent topic of consideration is analyzing what is

required of those responsible for repairing and reconciling the injustice of ecocide? In other

words, the next chapter will work towards developing a conception of environmental

transformative justice for post-ecocide states.

CHAPTER THREE

Why is Ecocide Unjust? A Constructivist Approach to Diagnosing the Injustice of Ecocide

I. Introduction to Constructivist Approaches to Justice

At this point in the text, it would be helpful to the reader to delineate a précis-overview,

recounting exposition within the preceding chapters, elucidating their strategic aims and

objectives. The first chapter considers paradigm cases and an idealized description of ecocide,

illustrating normatively relevant ways that these wrongs fall within the purview of Transitional

Justice due to the harm suffered (i.e., social death and loss of vital interests) and the manner in

which the harm occurred (i.e., direct, indirect, or negligent state action). Essentially, the first

chapter established the circumstance of environmental transformative justice, in that it delineated

the particular social settings that trigger the normative concerns to which environmental

transformative justice is responsive.

The second chapter amplified insights gained in the first chapter and attempted to

establish the full class of actors that have a role to play in overcoming the injustice of these

circumstances. Essentially, the second chapter sought to develop a conception of responsibility

that was persuasive, politically useful, and reasonably acceptable to the parties involved, while

assisting in countering detrimental and obscuring ideologies that disguise accountability (both

over-inclusively and under-inclusively) for ecocide. A core insight of the second chapter was that

in order to adequately discharge responsibility actors would be required to take part in shared

public activity (i.e., political action) to oppose, resist, and alter the background institutions and

practices generating each case of ecocide under discussion.

Accordingly, at present the dissertation has established the circumstances in which

environmental transformative justice is operative and who is responsible for engaging in

environmental transformative justice. Thus, what remains is to determine what ought to be done

in these situations. What objectives should actors be striving to achieve? And what must occur to

in order to fully obtain justice for the victims of ecocide? Most simply, what are the principle

aims of environmental transformative justice?

As such, the focus of the third and fourth chapters will be investigating how

environmental transformative justice can work towards repairing and reconciling the injustice of

ecocide. An important aspect of this analysis is demonstrating that the goals, procedures, and

mechanisms for achieving environmental transformative justice are compatible with,

complement, and simultaneously further those of both Transitional Justice and environmentalism

respectively. Ultimately, establishing links between Transitional Justice and environmentalism

strengthens and reaffirms a goal of this project, i.e., to rationally enlist and join both disciplines

as allies against ecocide.

After decades of analyzing and reviewing the real-world successes and failures of

societies attempting to overcome grave historical wrongs, the objectives of Transitional Justice

are fairly well established. Murphy succinctly summarizes how the discipline aims at

transitioning societies away from pervasive structural inequality, ending normalized political and

collective wrongdoing, establishing legitimate authority, and promoting social stability (Murphy

2017). As she emphasizes, achieving this kind of social transformation requires furthering the

rule of law, developing relational capabilities, and establishing political trust (Murphy 2017:

120-135). Accordingly, justice for victims of severe political injustice involves acknowledgement

of past wrongs, recognition of victims’ status as members of the political community, reparations

paid to victims, and holding perpetrators accountable for their role in enacting grave wrongs

(Murphy 2017: 172-186).

Conversely, as discussed last chapter, it is exceedingly difficult to neatly summarize the

broad and differentiated aims of environmentalism. Nevertheless, the work maintains that from

an environmentalist perspective there are two main objectives that arise when confronting the

cases of ecocide under consideration. First, steps must be taken to move towards an

environmentally sustainable state (what exactly ‘sustainability’ entails will be explored later in

the chapter) in which social practices, structures, and norms generating ecocide are no longer

tolerated and accepted. Secondly, the state, in conversation with affected communities, must

consider the possibility of restoring or constructing (i.e., in the same or different geographic

location) the lost habitat by attempting to renew biological, structural, and ecosystem

functioning.

A. Employing Constructivist and Comparative Approaches to Justice

But before we can begin analyzing how environmental transformative justice can work

towards meeting the goals of Transitional Justice and environmentalism, it is helpful to see if it is

possible to construct a general theory of environmental transformative justice by relying on

established conceptions of justice. Such an undertaking will hopefully lend support and

normative justification for the above mentioned goals of Transitional Justice and

environmentalism when confronting ecocide and assist in forging a disciplinary alliance capable

of challenging such injustice.

Thus the third and fourth chapters of the dissertation will explore what I contend to be the

two major approaches for articulating, legitimating, and applying conceptions of justice in

political philosophy: (1) a constructivist approach that attempts to delineate ideal distributive

principles, rules of regulation, and institutional structures that if enacted with strict compliance

in favorable conditions would generate a just state – e.g., Rawls, Dworkin, Scanlon, and

Gauthier; and (2) a comparative approach interested in examining the actual world and asking

how it can be made more just by observing what lives are like and what people are capable of

achieving by making comparisons between persons and groups – e.g., Sen and Nussbaum.

As such, we will begin by working through both of these approaches’ respective

methodology for determining what justice requires concerning the paradigm cases and idealized

description of ecocide. The assumption is that these methodologies can play a complementary

role (i.e., each approach’s particular weaknesses, deficiencies, and limitations can be assuaged by

relying on the strengths and insight of the other) in our attempt to develop an adequate

conception of environmental transformative justice.212

things considered) rules of regulation for responding to the fact-sensitive circumstances of

postecocide societies. Thus, the dissertation can avoid having to engage with Cohen’s criticism

of constructivist methodology (i.e., that constructivism derives and justifies principles of justice

from non-moral facts in a way that distorts our understanding of justice) because it already

admits it is undertaking a pragmatic approach aimed at reaching overlapping consensus for

responding to a specific set of harms (coping with reality), instead of striving to reach an

absolute final judgement (copying some immutable Truth). In other words, there is no need for

us, when conceptualizing environmental transformative justice, to embrace Cohen’s strategy of

theorizing strictly fact-independent principles of justice that eschew engaging with how things

work in practice.

212 It is important to keep in mind that the practices, methods, and policies for adequately

responding to ecocide will likely improve as the process of environmental transformative justice

is repeatably undertaken. The reason for this stems from the fact that if practitioners have access

Accordingly, the purpose is not to defend one approach over the other, but to pragmatically

utilize and adopt insights from each in the hopes of developing a conception of environmental

transformative justice able to offer societies meaningful guidance and assistance for combating

legacies of ecocide.213 In due course, if such approaches are able to justify and reaffirm the aims

of Transitional Justice and environmentalism, then it strengthens the work’s goal: to demonstrate

the interdisciplinary nature of environmental transformative justice.

By building a theory of environmental transformative justice from within a pluralist

account of mainstream conceptions of justice, the work seeks to bolster the possibility of

achieving general agreement via ‘overlapping consensus’ (i.e., differing normative doctrines

agreeing on particular policy objectives despite advancing generally inconsistent conceptions of

justice) as to what needs to occur in order to justly respond to cases of ecocide. As Steven

Vanderheiden states, “even if the differences among approaches [to justice] are of theoretical

interest, such differences should not obstruct consensus around practical measures to lessen (if

not fully rectify) the injustice in question (Vanderheiden 2016: 398). For instance, approaching

the issue of how to respond to ecocide by appealing to multiple theoretical frameworks, assists in

demonstrating potential diagnostic convergence regarding the harms suffered and prescriptive

to a growing body of empirical evidence (i.e., from past attempts), then they will be more readily

able to learn valuable lessons from prior successes or failures. Hence, it is reasonable to assume

that the conception of environmental transformative justice currently on offer, may change as it

is applied. It is helpful to recognize that anytime a new conception of justice is proposed,

practitioners should embrace a ‘learn-by-doing’ approach, in which the goals, means, evidence,

and values of policy-making are all open for constant (re)examination.

213 In many ways the answer to the question regarding how best to proceed in such

circumstances will greatly depend on the values and goals of the affected community. As Bryan

Norton stresses when making environmental decisions the procedure is often more important

than the absolute substantive conclusion. He asserts that the process must be, “democratic…it

must be iterative, it must be open to all voices in the community, and it must be receptive to

multiple values and varied formulations of these values” (Norton 2005: 273). Nevertheless, it is

reasonable to assume that it would be beneficial for post-ecocide communities’ decision-making

process, if theorists can offer guidance regarding the objectives of environmental transformative

justice.

convergence regarding potential remedies. Furthermore, such an endeavor will serve as an

effective diagnostic tool to further capture and clarify the injustice of ecocide and in so doing

strengthen the case for action by demonstrating robust consensus around core normative

judgements.

B. Overcoming a Preliminary Issue with Applying Rawls’s Ideal Constructivist Theory

to Ecocide

Constructivists assert that the fundamental objective and principal method of advancing

justice is to delineate ideal principles and basic social structures that are necessary and sufficient

for achieving a just state under reasonable conditions. As Cohen succinctly explains,

constructivists determine the principles of justice by relying on a “privileged selection process”

in which, “the fundamental principles of justice are the outcome of an idealized legislative

procedure whose task is to select principles that will regulate our common life” (e.g., Rawls’s

original position or Scanlon’s requirement of rules that no one could reasonably reject) (Cohen

2008: 282).

Thus, in an attempt to determine the ideal principles of environmental transformative

justice, we will begin by applying John Rawls’s theory of “justice as fairness” to ecocidal states.

The justification for focusing on Rawls is that his seminal theory is the preferred (or at least most

widely discussed) constructivist account in contemporary political philosophy. Furthermore,

situating our discussion regarding how to justly respond to ecocide within the heart of the

mainstream liberal tradition is beneficial, since as Charles Mills expounds: “The importance of

liberalism is that it is the most successful political philosophy of modernity and is now globally

hegemonic. Liberalism provides the most developed body of normative theory for understanding

the rights of persons and the conceptualization of social justice” (Mills 2017:

203).

Lastly, a benefit of looking at Rawls, is that his theory’s emphasis on respecting pluralism

of values and fraternity between citizens makes it well suited for incorporating and recognizing

the interests of autarkic communities in liberal societies. Such a theoretical contribution is

important because at present scholars often rely on importing principles of sovereignty and

noninterference from international relations theory to make sense of these ‘outsiders within.’

Such a perspective is discouraging for our present moment, in that we are in desperate need of

encouraging ecologically sustainable self-sufficiency (like those practiced autarkic communities)

as a realizable goal.219 Accordingly, the chapter hopes to demonstrate how

Rawls’s theory of “justice as fairness” can further the goal of incorporating autarkic interests into

“well ordered” societies.

Famously, Rawls in a Theory of Justice constructed an idealized social arrangement

designed to maintain equal liberties, maximize fair opportunity, and minimize inequality (Rawls

1971). But can these principles apply in cases of ecocide? Can Rawls’s ideal constructivist

theory provide guidance regarding how to justly grapple with the injustice of ecocide?

The initial answer is that Rawls’s ‘ideal theory’ will obviously prove inadequate because

repairing past injustices, such as ecocide, falls under the purview of what Rawls himself calls

‘non-ideal theory’ (Rawls 1971 revised edition 1999: 8). To briefly explain the distinction,

219 In other words, autarkic communities’ way of life should not be viewed as something

necessarily foreign, alien or carved-off from our mainstream political community but should

instead be championed as realizable, as evidenced by the fact that it already exists within our

society. Essentially, what is needed is not a hands-off approach, which emphasizes

noninterference and treats autarkic communities as foreign actors best left to their own devices;

but instead, efforts ought to be made to embrace and advocate for these communities, so as to

support their ability to maintain and reproduce their traditions, practices, cosmologies, and

relationships with their ancestral land, not only for their benefit, but for the benefit of society as

a whole. As David Schlosberg and David Carruthers explain: “In movements against coal

mining, oil and natural gas drilling, industrial use of scarce water, and numerous other threats to

local resources, much of the indigenous response is related to the capacity for communities and

cultures to thrive” (Schlosberg and Carruthers 2010: 30).

‘non-ideal theory’ focuses on identifying injustices of the present and investigating how societies

can move away from these injustices, towards achieving a just future (as defined by ‘ideal-

theory’).

However, it must be emphasized that presently we are not attempting to consider how

post-ecocide societies ought to achieve the ideal; but are instead, undertaking the constructivist

project of determining what the ideal is when determining the objectives of environmental

transformative justice prior to the actualization of these goals. Thus, while we are in the midst of

developing a constructivist framework for responding to the injustice of ecocide, we must

initially proceed as ‘ideal theorists’ before moving to problems of implementation, which are

considered the purview of ‘non-ideal theory’.222

Broadly, the constructivist method prioritizes the need for clear and distinct principles of

justice and stipulates that social progress can only reliably occur after ideal objectives have been

identified (Simmons 2010). As Rawls states, “the reason for beginning with ideal theory is that it

provides the only basis for the systematic grasp of more pressing problems [non-ideal theory]”

(Rawls 1971 revised edition 1999: 8).

Obviously, many non-ideal theorists contend that Rawls’s view is mistaken, and that ideal

theory is too detached from reality to help guide social progress or even worse that it facilitates

greater injustice (Mills 2005, 2007, 2012, 2015 and 2017). They instead presume that social

transformative justice settings the specific identity and historical experience(s) of a group or

individual are relevant factors for consideration when meting out social justice. No purely

futureoriented, ahistorical, normative framework will adequately assuage the moral requirement

of remedying past wrongs.

222 Nevertheless, it is important to highlight that a general problem with engaging with Rawls in

matters of non-ideal theory is that it is not clear what the status of his own principles should be.

Are they applied in conjunction with (hypothetical) principles of non-ideal theory? Or is there a

temporal sequence by which you do corrective justice first and only then seek to apply Rawls’s

principles? Thus, in proceeding we will assume that we can appeal to Rawls’s principles even

under the radically non-ideal conditions of ecocidal societies, but only as a means of illustrating

how these societies are non-ideal.

progress requires detailed attentiveness to the present state of the actual (‘non-ideal’) world;

starting with an understanding of current political and economic systems, as well as social

institutions, which necessitates applying a dynamic psychological picture of how people actually

behave in addition to sociological attunement to the societal conditions that we wish to improve.

As such, non-ideal theorists believe that only by earnest diachronic consideration of the

current state of affairs will we be able to make just decisions that improve society (Fatima 2014

and Tobin 2009). Accordingly, the non-idealist approach to justice (i.e., one that takes seriously

past and present circumstances, relations, conditions, processes and social interactions), seems

rather appropriate for analyzing the (in)justice of ecocidal and post-ecocide societies, in that past

histories and present circumstances of victims (former-autarkic peoples – current-ecological

refugees) and perpetrators (roving imperialists) are of relevant moral concern.

However, because we are working from within a constructivist framework, we can table

these criticisms for the present and assume that the constructivists are correct in the view that

non-ideal theorists would themselves require ideal normative standards to be able to offer

guidance and insights in non-ideal settings (see Rawls 1993, Buchanan 2004, Valentini 2009, and

Simmons 2010). As Lisa Herzog explains:

“Ideal theory, as understood here, is not about what is right and wrong per se, without any

consideration of the context in which its principles are to be applied but aims at being

actionguiding. It can therefore be reasonably limited by limitations of what it is possible to

do. If one does not accept this principle, ideal theory loses the ability to provide the guidance

it is supposed to deliver.” (Herzog 2012: 276)

Hence, if Rawls and other ideal constructivists are correct (as we are assuming needs to be

the case in order to devise coherent principles of environmental transformative justice), then his

and their theories ought to be able to provide some insights and guidance even in non-ideal

settings, (e.g., ecocidal societies) as defenders of ideal theory argue it must. As Mills eloquently

reminds us: “Ideal theory is not supposed to be an end in itself but is instrumental to the goal of

more adequately dealing with injustice” (Mills 2017: 155). Thus, to satisfy this requirement, this

work intends to demonstrate that a Rawlsian constructivist approach can offer insights regarding

what justice requires of post-ecocide communities and as a means of diagnosing the injustice of

ecocide.

To advance this line of inquiry the chapter will proceed in two phases. First, it will engage

with a canonical reading of Rawls’s theory and attempt to analyze how his famous two principles

of justice can be applied to cases of ecocide, i.e., employ an orthodox account of the theory to

begin fleshing out the tenets of environmental transformative justice. Secondly, the work will

rely on recent scholarship by Moises Vaca and Juan Espindola (2014) and Charles Mills (2017)

that convincingly argues that Rawls’s theory of “justice as fairness” requires an additional

principle of reparative justice; and then analyze how this augmented Rawlsian account can be

applied to cases of ecocide. Thereby we can further develop a theory of environmental

transformative justice by relying on an unorthodox, yet supposedly consistent reading of Rawls’s

theory. The hope is that this constructivist analysis will provide plausible (i.e., mainstream

liberal) principles of environmental transformative justice to reasonably guide the process of

rectifying and reconciling with the wrongs of ecocide.

II. Conceptualizing Justice Post-Ecocide: An Orthodox Rawlsian Approach

Rawls’s constructivist approach from “behind the veil of ignorance” in the “original position”

endorses two principles of justice:

(First Principle) Each person is to have an equal right to the most extensive total system

of equal basic liberties compatible with a similar system of liberty for all.

(Second Principle) Social and economic inequalities are to be arranged so that they are

both:

(a) To the greatest benefit of the least advantaged, consistent with the just savings

principle, and

(b) Attached to offices and positions open to all under conditions of fair equality of

opportunity (Rawls 1999: 266).

These principles are supposed to regulate the “basic structure” of society, i.e., the full set of

constitutional, political, legal, economic, and social institutions operating within a state. Rawls

defines the “basic structure” as, “the main political and social institutions and the way they fit

together as one scheme of cooperation” (Rawls 2001: 4). Therefore, in order for a society to be

just, its basic structure must satisfy the two principles of justice.

In this sense, Rawls’s constructivist theory is ideal in a non-technical sense in that it

proposes an ideal society that we should aim for as a model (Valentini 2009 and 2012). As Rawls

states in Political Liberalism, his theory strives to show, “how the social world may realize the

features of a realistic utopia…[that] provides a long-term goal of political endeavor, and in

working toward it gives meaning to what we can do today” (Rawls 1993: 128).

When we examine ecocidal societies on these terms, it is abundantly clear that they fall

far short of the “realistic utopias” that Rawls championed, in that they egregiously fail at

satisfying his two principles of justice. To explain their shortcomings, the work will briefly

describe the central discrepancies between these societies and one that would be considered

“well-ordered” in that it is in line with Rawls’s principles of justice.

For simplicity’s sake regarding Rawls’s understanding of well-ordered societies, the work

will proceed by specifying the miscarriages of justice occurring in ecocidal states by examining

each principle pursuant to Rawls’s stated lexical priority, in that basic liberties can never be

sacrificed to promote fair equality of opportunity or the difference principle; fair equality of

opportunity can never be undermined to promote the difference principle, and the just savings

principle is an intergenerational constraint on the difference principle. Thus, we will begin by

examining the first principle, which henceforth shall be referred to as the basic liberty principle,

which defends personal freedom and develops a system of legal and political rights; next we will

move on to the second clause of the second principle, which henceforth will be referred to as the

fair equality of opportunity principle (FEO), which ensures fair and equal prospects of achieving

attractive social positions; next we will move on to the first clause of the second principle, which

henceforth will be referred to as the difference principle, which establishes solidarity with the

least advantaged group, and finally, we will consider the restrictive condition of the first clause

of the second principle, which henceforth will be referred to as the

just savings principle, which establishes intergenerational fairness.

A. Ecocidal Societies’ Failure to Respect Basic Liberties

Rawls’s first principle of justice communicates the basic rights and liberties that are to be

distributed equally to all citizens. As he explains, the “intuitive” idea behind the basic liberty

principle is, “to generalize the principle of religious toleration to a social form, thereby arriving

at equal liberty in public institutions” (Rawls 1999: 180 Note 6). Helpfully, Rawls offers a list of

the basic liberties, stating:

Important among these are political liberty (the right to vote and to hold public office)

and freedom of speech and assembly; liberty of conscience and freedom of thought;

freedom of the person, which includes freedom from psychological oppression and

physical assault and dismemberment (integrity of the person); the right to hold personal

property and freedom from arbitrary arrest and seizure as defined by the concept of the

rule of law. (Rawls 1999: 53)

As we saw in our paradigm cases of ecocide in the first chapter, the environmental

destruction of autarkic communities’ habitat directly violates many of the basic liberties. It

seems incontrovertible that members of the victimized group suffered psychological oppression

caused by the loss of their means of subsistence, their ancestral traditions, and meaning in their

lives. Furthermore, as documented, it is often the case that the environmental destruction is

precipitated by the expulsion of communities from their ancestral land (e.g., the Australian

government forcibly relocating the Anangu off their reservation), which likely constitutes

physical assault and violates the right to hold personal property, against either intentional or

arbitrary seizure.

But one might question if ecocide could potentially occur without basic liberties being

infringed? It is certainly true, that many instances of environmental destruction occur without

transgressing basic liberties, e.g., natural disasters or when all actors involved voluntarily agree

to destroy the habitat. However, the cases that fall within our conception of ecocide are narrower

in scope, in that the environmental harm must have (1) been intentionally enacted, (2) absent

consent from an impacted community, which (3) undermined their vital interest(s).

Since the ecosystem had previously constituted such a vital interest, that its destruction

caused partial or complete “social death” of the impacted community, it seems clear that the

victimized community must have had or deserved some title to the land. At minimum, Rawls

would consider the destruction of these ecosystems without the impacted communities’ consent,

a violation of their personal property rights. Since for Rawls, personal property is a basic liberty

that includes, “at least certain forms of real property, such as dwellings and private grounds,” i.e.,

housing, shelter, and personal items (Rawls 200: 114 note 36).

Essentially, Rawls couches his defense of personal property in Hegelian terms, as a means

of securing, “a sufficient material basis for personal independence and a sense of self respect,

both of which are essential for the adequate development and exercise of the moral powers”

(Rawls 2011: 114). Therefore, because of the reality of how intimately linked these communities

were (materially, culturally, and psychologically) to their habitats all cases of ecocide (i.e.,

environmental destruction that satisfy the above criteria) appear to engender violations of their

basic right to personal property.

Furthermore, beyond these glaring human rights abuses, the spirit of the basic liberty

principle is violated in ecocidal states. The goal of basic liberties is to ensure all citizens have the

maximum freedom to develop their respective capabilities and engage with others in cooperative

social ventures. As Rawls states, “the basic rights and liberties and their priority are there said to

guarantee equally for all citizens the social conditions essential for the adequate development

and the full and informed exercise of their two moral powers - their capacity for a sense of

justice and their capacity for a conception of the good” (Rawls 1999: xii).

Thus, ecocidal societies undermine the core aspiration of the basic liberty principle by

inhibiting members of impacted autarkic community’s purposeful self-development, i.e., “[the]

necessary conditions for realizing the powers of moral personality” (Rawls 1982: 162).231 Since

ecocide destroys these peoples’ traditional way of life, hampers their ability to meet their basic

needs, and uproots their social connections, it severely curtails their ability to achieve their

higher interests, e.g., forging stable social unions, developing their self-governing powers, or

articulating conceptions of justice using public reason.

However, one might argue that these former autarkic community members (i.e., ecocide

refugees) could still have their basic liberties satisfied in another location. While it is true that

after the harm, the impacted citizens may be placed in a situation, in which they can pursue their

purposeful self-development. However, such a result is unlikely because of the significance that

connecting to a particular place plays in these citizens’ self-conception (e.g., they are unable to

conduct religious ceremonies that were tied to a specific geographic location or natural entity

that has been destroyed or made inaccessible). As such, uprooting autarkic citizens from places

to which they have deep ties, likely forecloses important aspects of their self-development.

Moreover, the act of causing, instigating, or allowing ecocide to occur (per our technical

definition) always constitutes a violation of the impacted citizens’ rights because of the reality

that they never consented. The reason for this is that, since ecocide occurs without consent, it

necessarily undermines victimized autarkic citizens’ “social basis of self-respect” because it

demonstrates the contempt and indifference the state has towards the “conception of the good”

and “social arrangements” on which these peoples rely to govern their lives. It makes it seem as

though their way of life, concerns, and well-being are valueless or at least unworthy of

consideration, protection, or preservation, which is anathema to the basic liberty principle’s goal

of fostering a sense of self-worth throughout the citizenry. Thus, the violation has already

occurred, even if the victimized citizens are subsequently placed in a situation in which their

basic liberties are respected.

Furthermore, it is true that ecocide may occur because other segments of the populations

are acting in accordance with their basic liberties (e.g., industrial farmers or cattle ranchers using

their property rights). The issue is that ecocidal states err by pervasively privileging roving

imperialists’ ‘comprehensive doctrines’ over that of autarkic communities (e.g., prioritizing

growth rather than sustainability; integrating into global-supply chains rather than maintaining

local subsistence; viewing man as dominant and separate from nature rather than viewing man as

having a reciprocal, mutual, and integrated relationship with nature; faith in disciplinary

experimental science and technology rather than faith in traditional cultural knowledge, learning,

and practices, etc.), which is in direct opposition to the basic liberty principle’s objective of

compelling states to remain neutral and to not favor or prioritize the merits of reasonable

“conceptions of the good” over other legitimate views. As Rawls states: “The principles not only

specify the terms of cooperation between persons, but they define a pact of reconciliation

between diverse religions and moral beliefs, and the forms of culture to which they belong. If

this conception of justice now seems largely negative, we shall see that it has a happier side”

(Rawls 1999: 194).

Additionally, one may object that basic liberties do not apply to autarkic communities

because these communities exist outside of and independent from the modern liberal states that

Rawls is considering. Rawls, however, recognizes that modern states contain numerous diverse

communities and advocates cultural pluralism (which is a central justification for basic liberties

in the first place). “It is a serious error not to distinguish between the idea of a democratic

political society and the idea of a community. Of course, a democratic society is hospitable to

many communities within it, and indeed tries to be a social world within which diversity can

flourish in amity and concord” (Rawls 2001: 21).

Since modern liberal societies are designed to tolerate and respect a wide array of

cultures and communities, there seems to be no conceptual justification for assuming that

autarkic communities would be entirely absent from within their borders. In fact, our case studies

prove that such an assumption is false, since some of our paradigm instances of ecocide occurred

within prototypically modern liberal states (e.g., the Cree in Canada and the Anangu in

Australia).

Nevertheless, despite the above endorsement of pluralism, one may pursue the argument

that the basic liberties do not apply to autarkic communities by claiming that their members’ way

of life and subsistence practices do not meet Rawls’s idealized conception for citizenship – i.e.,

“fully cooperating members of the political society” (Rawls 1999: xiii). The argument relies on

endorsing the assertion that to be afforded basic liberties, individuals must be contributing

members of society; since, for Rawls, “society” entails “a system of cooperation designed to

advance the good of those taking part in it…a cooperative venture for mutual advantage” (Rawls

1999: 4). As Jeppe von Platz explains:

At the heart of the Rawlsian idea of democratic society as a system of social cooperation

between free and equal citizens is the idea that all citizens participate in and contribute to

the production of the social goods; citizens are and ought to be part of the cooperative

system and play a productive role in the economy. In short—and the broad sense I

specified in the introduction—citizens work (Platz 2016: 291).

Hence, Rawls maintains that to be granted the rights and advantages of citizenship

requires contributing to the statewide system of cooperation for mutual benefit. But the issue, per

this line of reasoning, is that autarkic communities’ subsistence practices, cultural achievements,

and way of life fail to adequately contribute to the wellbeing of the broader society. As

nonreciprocators, they are not fully engaged members of the society; and thus, the state has no

obligation to consider them citizens nor grant them the advantages (i.e., basic liberties) of social

cooperation.

Unsurprisingly, such an argument is immediately dismissed by Rawls because according

to his theory, achieving citizenship only requires the “capacity” to contribute (which we can

construe broadly as engaging in “socially beneficial activity”): “the only relevant feature of

persons is…having the normal capacities to be a cooperating member of society over a complete

life” (Rawls 1993: 79). As Platz clarifies, “the status, rights, and obligations of citizenship are

predicated on the capacities, not on their proper actualization, so (a bit paradoxically), anyone

who can be a citizen is a citizen.” (Platz 2016: 292).

Accordingly, since there is no doubt that members of autarkic communities have the

capacity to contribute social benefits, then they must be considered citizens deserving of basic

liberties. However, a pressing point for our analysis is demonstrating that autarkic communities’

traditional way of life does in fact bestow benefits to the wider society.

Such a confirmation is unnecessary to show that autarkic citizens are deserving of basic

liberties. But it is nevertheless worthwhile to demonstrate ways in which autarkic communities

do in fact generate social benefits because without this assurance, there is the risk that too narrow

a conception of social cooperation will hinder some communities from recognizing their value

and receiving the full esteem and respect they deserve for their effort.

Essentially, the worry is that if the conception of “socially beneficial activity” is not

construed broadly enough to include autarkic communities’ subsistence practices and cultural

achievements, then it may increase the difficulty of theorizing the injustice of ecocidal societies

from within a Rawlsian or other framework(s) of justice. Since, if localized subsistence and

cultural practices are viewed as bereft of value, it could support and justify the state’s decisions

to honor, esteem, and privilege roving imperialist productive lifestyles over those of autarkic

communities, perceived as otiose and incongruous.

Undoubtedly, such a conclusion is anathema to the basic liberty principle’s aim of

maintaining a pluralistic conception of society, i.e., one that is amenable and hospitable to

various communities and cultures pursuing their own “conceptions of the good” and ways of life.

Thus, to prevent these issues from arising, it is important to construe “socially beneficial

activity” (i.e., work or productive labor) broadly or else risk illiberally prioritizing certain “social

arrangements” and “conceptions of the good” over others.

Fortunately, it should seem fairly obvious that such a circumscribed interpretation of

productive labor is flawed. For instance, if the meaning of work is limited to commodity

production or marketable labor (as often happens in the discipline of Economics), key aspects of

value creation that are undoubtedly necessary to maintaining and reproducing a functioning

society are obscured, e.g., child rearing, benevolent aid and assistance, maintaining ecosystem

functioning, production for direct consumption. Case in point, feminists have long decried the

view that laboring in competitive markets (i.e., working subjects driven by their acquisitive

desire for more, imposing form and order on objects) constitutes the paradigmatic model of

social contribution because it makes invisible and dismisses women’s traditionally non-market

involvement in society (e.g., household labor, child rearing, birthing, etc.) (Schwarzenbach

1987).

Analogous to the feminist criticism above, it is important that autarkic communities’

contribution to society be recognized. Fortunately, as discussed in the preceding chapters,

autarkic communities’ subsistence practices are undoubtedly beneficial to the broader society, as

they promote ecosystem functioning, protect biodiversity, preserve in-depth knowledge of local

habitats, and provide outsiders the opportunity to learn sustainable and environmentally friendly

practices. Accordingly, while autarkic communities may not produce marketable commodities or

bolster the ranks of wage labor, it is clear that their way of life certainly benefits the broader

society. Thus, we have shown that not only do autarkic citizens have the capacity to contribute:

they actually do contribute.

At present, it is unnecessary to push the debate further and defend the view that autarkic

communities’ subsistence practices are in fact more socially beneficial than those of roving

imperialists because, as stated earlier, liberal societies ought to remain agnostic on these matters

(if possible) or risk privileging some “conceptions of the good” over others.235 Hence, as has been

shown, autarkic subsistence practices do meet the standard of “social cooperation” within a

Rawlsian state, which must construe socially productive contribution (work) broadly or risk

illiberally prioritizing one way of life over another. Therefore, this analysis has dismissed the

argument that inhabitants of autarkic communities should not be afforded the advantages of

citizenship (i.e., basic liberties) because they are non-reciprocating members of society.

Lastly, there is one final argument that one might proffer to deny members of autarkic

communities’ basic liberties. It is important to state upfront that this argument seems rather

farfetched, however it is occasionally worth rebuking potentially misguided objections before

they arise to help clarify the overall analysis.

Basically, the argument proceeds by assuming that because these communities violate the

basic liberties of their own members, they have forfeited the right to these protections

themselves. Before we continue, it is necessary to point out that nothing in our analysis so far has

shown that autarkic communities do not respect the basic liberties of their members. As such, the

burden would fall on those wishing to make this claim to provide compelling evidence

supporting their assertion, because there is nothing inherent to the structure of autarkic

communities necessitating that they violate some of their members’ basic liberties.

Nonetheless, we will simply stipulate that for argument’s sake there is in fact a particular

community that restricts some of its members’ basic liberties, e.g., they prevent certain members

from voting or forbid them from interacting with outsiders. The somewhat curious argument

relies on the intuition that since these communities violate their members’ basic liberties, they

ought to lose their own. Or as Rawls rhetorically quips when considering the limits of toleration

for intolerant groups in liberal society, “it seems that an intolerant sect has no title to complain

when it is denied an equal liberty…[since] a person’s right to complain is limited to violations of

principles he acknowledges himself” (Rawls 190: 1999).

This sentiment may have some intuitive plausibility in cases where the right at issue is of

the same kind as the right that the group is internally restricting, e.g., when a group censoring its

own members complains of outside censorship from the state. It is farfetched, however, to

imagine a scenario in which the autarkic community’s internal violation of their members’ basic

liberties resembles with the type of wrongs under consideration in ecocidal societies. One

potential instance might be an autarkic community that destroys some of its members personal

property but complains when the state destroys their collective habitat.

While this argument seems highly tenuous, we will continue the analysis because, even in

this absurd example, it still does not entail that the state can violate the community’s basic

liberties. Since, as Rawls explains, basic liberties can only be violated in the situations where it is

necessary to preserve liberty itself, “freedom should be restricted only when the tolerant

sincerely and with reason believe that their own security and that of the institutions of liberty are

in danger. The tolerant should curb the intolerant only in this case” (Rawls 1999: 193).

Therefore, since the autarkic community’s destruction of some of its members’ personal

property seems unlikely to rise to the level of posing an existential threat to the institutions of

liberty themselves, the state lacks justification for intervening and violating the community’s

basic liberties beyond standard criminal proceedings. In summary, the state could never justify

violating the autarkic citizens’ basic liberties because of the community’s internal injustices,

unless the response was necessitated to preserve the institution of liberty itself.

The work has now shown that ecocidal societies have acted unjustly by not protecting the

basic liberties of members of autarkic communities within their borders. Consequently, to satisfy

the standards of “justice as fairness,” it is necessary that these states cease acting in ways that

directly, indirectly, or negligently generate ecocide that violates the basic liberties of their

citizenry. Next, the work will explore how ecocidal societies also commit injustices by violating

the fair equality of opportunity clause of Rawls’s second principle of justice.

B. Ecocidal Societies’ Failure to Respect Fair Equality of Opportunity

The goal of the fair equality of opportunity principle (FEO) is to regulate citizens’ ability

to attain differing social positions and achieve personal development, while still insuring that

“these offices and positions are open to all under fair equality of opportunity” (Rawls 1971).

Essentially, all citizen with comparable talents should have an equal chance of realizing their

socio-economic objectives.

Thus, in order to further FEO, it is necessary that, regardless of background or social

origins (e.g., rich or poor, majority or minority race, ethnicity, male or female, etc.), that all

citizens have equal opportunity to develop their talents and achieve their aspirations. As Rawls

states, “those with similar abilities and skills should have similar life chances…who are at the

same level of talent and ability, and have the same willingness to use them, should have the same

prospects of success regardless of their initial place in the social system” (Rawls 1999: 63). But

FEO maintains that social positions throughout all sectors of society must be attainable in a

“substantive” sense beyond mere “formal” openness, “there should be roughly equal prospects of

culture and achievement for everyone similarly motivated and endowed” (Rawls 1999: 63).

In order to ensure comparable access to “substantive” opportunity, it is vital that, for

instance, the education or health care systems should be designed to level social barriers and

foster the prospects of equal life chances (Rawls 1999: 63). To illustrate what “substantive

opportunity” (i.e., that each citizen has equal prospects of developing their natural talents as any

other) entails, it is helpful to provide an example.

Consider two people Alex and Sam, both of whom are equally motivated to go to law

school and become lawyers. Alex has wealthy parents who are able to afford hiring tutors,

whereas Sam’s family is poor and cannot afford tutors. Consequently, Alex excels in school and

is admitted to a prestigious law school and after graduation is hired to a competitive position as a

lawyer; whereas Sam did comparatively worse in school and was not able to gain admittance to

law school. Thus, Sam’s prospects of becoming a lawyer were unsuccessful.

This example violates fair equality of opportunity because Alex and Sam lacked

comparable substantive prospects of developing their abilities to attain competitive social

positions, while they nevertheless still had the same formal chances, in that there were no legal

restriction or discriminatory practices that overtly barred either from attempting to pursue a

career in law. Nonetheless, it is obvious that Alex was in a better position to become a lawyer

because of luckily being born to a wealthy family that provided extra resources and advantages

for winning competitive social positions.239

Accordingly, the injustice stems from the fact that initially Sam had equal motivation and

could have been as proficient a lawyer as Alex, if given the same resources. As such, it is clear

that FEO goes beyond simply prohibiting discriminatory laws and policies that formally restrict

access to social positions and personal development and instead mandates substantive equality of

opportunity aimed at affording all citizens the chance to actualize and develop their abilities.

Hence, it is supposed to combat and level undeserving advantages that certain segments of the

citizenry may receive by virtue of birth, accident, or structural inequity.

239 As Thomas Nagel explains in his discussion of Rawls’s view on affirmative action: “Those

born poor cannot compete as effectively as the well-off for desirable positions, because their

families can't give them the same level of education, the same network of support, the same

cultural advantages, health care, and so forth. They are also likely to have less motivation to

succeed. This means that they don't have fair equal opportunity even if they are not formally

discriminated against” (Nagel 2003: 84).

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