This guest blog is authored by Claire Ramón, a Master’s student at Sciences Po Lille and Toulouse Jean Jaurès University
The concept “responsible mining companies” has no single legal definition. Here, it refers to companies that conduct their activities in compliance with the applicable legal framework and have put in place structured mechanisms to identify and manage their environmental and social risks. Under international industry standards, this includes, in particular, tailings management, water and waste management, pollution prevention, facility safety, site rehabilitation, and monitoring and oversight mechanisms. The International Council on Mining and Metals (ICMM), which represents a significant part of the international mining industry, places these practices within a broader understanding of “responsible mining” and develops recommendations aimed at improving the sector’s environmental and social performance. Its work on tailings management places particular emphasis on engineering, monitoring, risk management, and the responsibilities of decision makers at different levels.
From this perspective, the value of the debate on ecocide lies less in defining what would constitute acceptable mining than in examining the level of responsibility that should apply when environmental risks reach an exceptional degree of seriousness. For companies that already devote significant resources to prevention, this question is directly linked to the legal and economic value of those efforts.
The concept of ecocide is intended to introduce a criminal-law category reserved for the most serious environmental harm. The definition developed in 2021 by an independent expert panel convened at the initiative of the Stop Ecocide Foundation refers to “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts”. This definition also serves as the starting point for the proposal to include ecocide among the crimes covered by the Rome Statute.
For the mining sector, the key point is that ecocide does not cover every instance of environmental harm. The existence of an environmental impact, pollution, or even a serious accident would not necessarily be sufficient to establish the offence. The definition rests on a combination of criteria, relating in particular to the severity of the damage, its extent or duration, and the perpetrator’s knowledge of the risk.
This distinction may have practical consequences for operators that already have sophisticated risk-management systems in place. A tailings storage facility necessarily involves technical risks; the theoretical possibility of a failure is not, in itself, sufficient to establish ecocide. The question becomes what information was available, how the risk was assessed, what measures were taken, and how warnings were handled. The proposed definition, therefore, does not establish automatic liability based solely on the environmental outcome.
The issue is also one of prevention. Under the definition proposed by the experts, the harm does not need to have fully materialised: the offence may be established where the acts in question create a risk of sufficiently serious harm and the other conditions set out in the definition are met. For companies, this gives particular importance to procedures for identifying serious risks, escalating the knowledge of said risks to the appropriate decision-making levels, and documenting the responses provided.
For operators that already comply with high environmental standards, one reason ecocide legislation may matter is competition. Preventive measures involve significant costs: studies, engineering, monitoring, water treatment, facility safety, rehabilitation, and monitoring systems. An operator that cuts these costs by taking greater risks may gain an economic advantage in the short term.
Legislation targeting the most serious environmental harm may therefore help prevent such an advantage from being based on shifting the cost of damage onto the state, local communities, or other users of the land. It may also strengthen the value of investments made by companies that already comply with the rules. It is in this context that the term “level playing field” is used in industry discussions: the aim is for competitive advantage to stem from efficiency, technology, or the quality of management, rather than from reducing expenditure on environmental risk prevention.
Illegal activities are, moreover, addressed through several distinct legal instruments: mining law, the enforcement of concession rules, measures to combat fraud and mineral trafficking, environmental law, and regulations governing artisanal mining. Ecocide legislation would not replace these mechanisms. It could provide an additional tool where illegal or non-compliant activities cause, or expose the environment with sufficient certainty to, a damage that meets the particularly high threshold for the offence.
The recent adoption of a Model Ecocide Law for Latin America is helping to move the debate forward.
For the mining sector, this development is of interest because it shifts the discussion from the principle of recognising ecocide to the practical conditions under which it would interact with extractive activities. The questions include the threshold of seriousness, the intentional or deliberate nature of the offence, the consideration of risks known at the time a decision was made, and the liability of the various actors involved in a mining project.
For companies that present themselves as responsible operators, the development of ecocide law may also place particular importance on the mechanisms they already have in place to identify and prevent risks: environmental assessments, independent expertise, facility monitoring, warning procedures, escalation of technical information, and traceability of decisions. These elements may help document the risks that had been identified, the information available to those responsible, and the measures taken in response.
The relationship with administrative permits is an important issue in this respect. Under the 2021 international definition, the fact that an activity is authorised is not, in itself, sufficient to rule out the possibility of ecocide, since the definition distinguishes between “unlawful” and “wanton” acts. Nevertheless, a permit, an environmental impact assessment, or compliance with administrative requirements remain relevant factors in determining which risks were identified, what information was available, and what measures the operator took.
The scope of this development will therefore depend to a large extent on how national legislation defines the offence. For the mining sector, the issue is not simply the introduction of a new criminal offence, but the precise delineation of its scope in relation to existing legal frameworks. A sufficiently demanding definition may allow the term “ecocide” to be reserved for environmental harm of exceptional seriousness, while giving greater legal significance to the prevention and risk-management systems already put in place by some operators.
