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Our kids are missing out on critical thinking

If we are to navigate the complex challenges of the 21st century, our understanding of and ability to teach critical thinking demands urgent attention

By Associate Professor Martin Davies , University of Melbourne

Published 28 August 2024

Critical thinking is more essential today than ever. The world faces numerous challenges that warrant urgent critical reflection – from climate change and wealth inequality to ongoing conflicts and resource shortages.

These crises are compounded by a growing crisis of confidence, marked by the spread of 'fake news ' and the erosion of trust in traditional institutions. The  January 6 US Capitol attack , exemplifies this breakdown, as does the deepening political polarisation in its aftermath.

There has been a hardening of views on both sides of the political spectrum since then.

The recent attempted assassination of former President Trump by a lone-wolf activist is not unusual in U.S. history.

However, the extent of political polarisation now seems to be framed by hostility and partisanship, the likes of which have not been seen since the civil rights era – or perhaps even earlier, the civil war of the mid-19th century.

People are increasingly unwilling to accept the status quo or the platitudes that politicians regularly serve up . Along with this, the rise of AI and technologies like ChatGPT has intensified scepticism about what we read, hear or see.

A recent Australasian Society for Computers in Learning in Tertiary Education (ASCILITE) presentation highlighted that, in this tech-dominated world, critical thinking is crucial for academic integrity.

They noted a troubling trend: learners are focusing more on 'How can I get this done?' rather than asking, 'Is this ethical?'.

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How disinformation is undermining our cities

Social media platforms like Facebook, X, and TikTok allow anyone to share information without filters for accuracy, leading to the widespread issue of “ truth decay ” – the idea that facts and critical analysis now play an ever-diminishing role in public life.

The media, too, has become susceptible to misinformation, often prioritising sensationalism over facts. Rather than serving as guardians of truth, they sometimes propagate falsehoods , making the need for critical thinking all the more urgent.

Paradoxically, while critical thinking is in decline, it is in high demand among an odd assortment of stakeholders – businesses, universities, governments, and venture capitalists.

According to the World Economic Forum's Future of Jobs report (2023-2027), "analytical thinking" – a synonym for ‘critical thinking’ – is the most sought-after skill across various industries worldwide.

In a survey of 803 companies employing 11.3 million workers across 27 industry clusters, critical thinking was considered more crucial than technological literacy, AI, talent management, leadership, multilingualism and even cybersecurity.

A 2017 report by the Australian government highlighted that the importance of critical thinking in job ads rose by 158 per cent, surpassing problem-solving, teamwork, communication skills and financial literacy.

It will apparently consume 3.8 billion more work hours by 2030.

Critical thinking certainly appears to be a skill ‘on the rise’ and central to employment in the new economy.

However, despite its importance, we don’t really know what critical thinking is . It is not even clear that critical thinking is principally, and just a “skill .”

Reports, institutions, and funding bodies might well be dedicated to a 'skill on the rise,'  but they might also be quite misinformed about the very thing they purport to foster in the population.

Tech savvy teaching of critical thinking

In the US, critical thinking has become an industry, with papers written on its application in fields as diverse as engineering and the military . Disturbingly however, many students show no significant improvement in critical thinking abilities after completing a college degree.

A recent OECD study involving 120,000 students from six countries found that one-fifth of students performed at the lowest level in critical thinking, with half performing at the two lowest levels.

A US study noted that 45 per cent of college students showed no significant gains in critical thinking, complex reasoning, or writing skills over their four-year degree.

Since the inception of the modern university in Bologna in 1088, critical thinking has been a desirable – arguably the most desirable– 'graduate attribute'.

But universities' claims that they teach critical thinking have been  under scrutiny for decades . Some employers argue that graduates no longer demonstrate the critical thinking skills they expect .

Some employers want to move away from a reliance on academic qualifications, preferring instead to 'train on the job'. Is declining critical thinking in the academy to blame?

Moreover, faculty members often demonstrate ignorance about the intellectual traits – known as ' dispositions ' – that are essential to critical thinking.

They are also unable to outline the differences between critical thinking and creative thinking, problem-solving or decision-making.

This raises doubts about their ability to teach it effectively .

Blind faith in Australia’s education ‘system’ is failing our kids

Socrates, through Plato’s dialogues, can perhaps lay claim to being one of the earliest exponents of what we now call 'critical thinking'.

By maintaining his ignorance, Socrates asked probing questions that undermined staunchly held views on subjects like 'truth', 'beauty' or 'justice'.

By questioning and dismantling the assumptions of others, Socrates exemplified critical thinking in its purest form: the re-evaluation of certainties and the testing of claims against stronger arguments.

Today, modern universities continue to emphasise the importance of critical thinking in promotional materials and course descriptions. However, as we have seen, the reality often falls short of the rhetoric.

Critical thinking is not well understood by those who are supposed to be teaching it  and the broader context in which it is situated is not fully grasped by its advocates.

This situation is unlikely to be resolved soon, but it highlights the need for further research into critical thinking, not only in students but in the wider public.

           A promising – albeit woefully underused – technique is computer-aided argument mapping.  This is a way to explicitly and concisely represent reasoning by building diagrams that map out the logical structure of an argument.

Evidence suggests that it leads to significant gains  on independent critical thinking assessment tests.

The importance of critical thinking has never been greater, yet our understanding of it has never been so limited. This creates a perfect storm – a situation where the need for critical thinking is rising, but our capacity to foster it is in serious question.

It’s a scandalous situation, demanding urgent attention if we are to navigate the complex challenges of the 21st century. 

Associate Professor Martin Davies was co-editor, with Professor Ronald Barnett, of the Palgrave Handbook of Critical Thinking in Higher Education (Palgrave, 2015).

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Associate Professor Martin Davies

Principal Fellow in Higher Education, Melbourne Graduate School of Education, University of Melbourne

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What are the mental health benefits of exercise?

Other mental health benefits of exercise, reaping the mental health benefits of exercise is easier than you think, overcoming obstacles to exercise, getting started with exercise when you have a mental health issue.

• Easy ways to move more that don't involve the gym

The Mental Health Benefits of Exercise

You already know that exercise is good for your body. But did you know it can also boost your mood, improve your sleep, and help you deal with depression, anxiety, stress, and more?

Exercise is not just about aerobic capacity and muscle size. Sure, exercise can improve your physical health and your physique, trim your waistline, improve your sex life, and even add years to your life. But that’s not what motivates most people to stay active.

People who exercise regularly tend to do so because it gives them an enormous sense of well-being. They feel more energetic throughout the day, sleep better at night, have sharper memories, and feel more relaxed and positive about themselves and their lives. And it’s also a powerful medicine for many common mental health challenges.

Regular exercise can have a profoundly positive impact on depression, anxiety, and ADHD. It also relieves stress, improves memory, helps you sleep better, and boosts your overall mood. And you don’t have to be a fitness fanatic to reap the benefits. Research indicates that modest amounts of exercise can make a real difference. No matter your age or fitness level, you can learn to use exercise as a powerful tool to deal with mental health problems, improve your energy and outlook, and get more out of life.

Exercise and depression

Studies show that exercise can treat mild to moderate depression as effectively as antidepressant medication—but without the side-effects, of course. As one example, a recent study done by the Harvard T.H. Chan School of Public Health found that running for 15 minutes a day or walking for an hour reduces the risk of major depression by 26%. In addition to relieving depression symptoms , research also shows that maintaining an exercise schedule can prevent you from relapsing.

Exercise is a powerful depression fighter for several reasons. Most importantly, it promotes all kinds of changes in the brain, including neural growth, reduced inflammation, and new activity patterns that promote feelings of calm and well-being. It also releases endorphins, powerful chemicals in your brain that energize your spirits and make you feel good. Finally, exercise can also serve as a distraction, allowing you to find some quiet time to break out of the cycle of negative thoughts that feed depression.

Exercise and anxiety

Exercise is a natural and effective anti-anxiety treatment . It relieves tension and stress, boosts physical and mental energy, and enhances well-being through the release of endorphins. Anything that gets you moving can help, but you’ll get a bigger benefit if you pay attention instead of zoning out.

Try to notice the sensation of your feet hitting the ground, for example, or the rhythm of your breathing, or the feeling of the wind on your skin. By adding this mindfulness element—really focusing on your body and how it feels as you exercise—you’ll not only improve your physical condition faster, but you may also be able to interrupt the flow of constant worries running through your head.

Exercise and stress

Ever noticed how your body feels when you’re under stress ? Your muscles may be tense, especially in your face, neck, and shoulders, leaving you with back or neck pain, or painful headaches. You may feel a tightness in your chest, a pounding pulse, or muscle cramps. You may also experience problems such as insomnia, heartburn, stomachache, diarrhea, or frequent urination. The worry and discomfort of all these physical symptoms can in turn lead to even more stress, creating a vicious cycle between your mind and body.

Exercising is an effective way to break this cycle. As well as releasing endorphins in the brain, physical activity helps to relax the muscles and relieve tension in the body. Since the body and mind are so closely linked, when your body feels better so, too, will your mind.

Exercise and ADHD

Exercising regularly is one of the easiest and most effective ways to reduce the symptoms of ADHD and improve concentration, motivation, memory, and mood. Physical activity immediately boosts the brain’s dopamine, norepinephrine, and serotonin levels—all of which affect focus and attention. In this way, exercise works in much the same way as ADHD medications such as Ritalin and Adderall.

Exercise and PTSD and trauma

Evidence suggests that by really focusing on your body and how it feels as you exercise, you can actually help your nervous system become “unstuck” and begin to move out of the immobilization stress response that characterizes PTSD or trauma. Instead of allowing your mind to wander, pay close attention to the physical sensations in your joints and muscles, even your insides as your body moves. Exercises that involve cross movement and that engage both arms and legs—such as walking (especially in sand), running, swimming, weight training, or dancing—are some of your best choices.

Outdoor activities like hiking, sailing, mountain biking, rock climbing, whitewater rafting, and skiing (downhill and cross-country) have also been shown to reduce the symptoms of PTSD.

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Even if you’re not suffering from a mental health problem, regular physical activity can still offer a welcome boost to your mood, outlook, and mental well-being.

Exercise can help provide:

Sharper memory and thinking. The same endorphins that make you feel better also help you concentrate and feel mentally sharp for tasks at hand. Exercise also stimulates the growth of new brain cells and helps prevent age-related decline .

Higher self-esteem. Regular activity is an investment in your mind, body, and soul. When it becomes habit, it can foster your sense of self-worth and make you feel strong and powerful. You’ll feel better about your appearance and, by meeting even small exercise goals, you’ll feel a sense of achievement.

Better sleep. Even short bursts of exercise in the morning or afternoon can help regulate your sleep patterns . If you prefer to exercise at night, relaxing exercises such as yoga or gentle stretching can help promote sleep.

More energy. Increasing your heart rate several times a week will give you more get-up-and-go. Start off with just a few minutes of exercise per day, and increase your workout as you feel more energized.

Stronger resilience. When faced with mental or emotional challenges in life, exercise can help you build resilience and cope in a healthy way, instead of resorting to alcohol, drugs, or other negative behaviors that ultimately only make your symptoms worse. Regular exercise can also help boost your immune system and reduce the impact of stress.

You don’t need to devote hours out of your busy day to train at the gym, sweat buckets, or run mile after monotonous mile to reap all the physical and mental health benefits of exercise. Just 30-minutes of moderate exercise five times a week is enough. And even that can be broken down into two 15-minute or even three 10-minute exercise sessions if that’s easier.

Even a little bit of activity is better than nothing

If you don’t have time for 15 or 30 minutes of exercise, or if your body tells you to take a break after 5 or 10 minutes, for example, that’s okay, too. Start with 5- or 10-minute sessions and slowly increase your time. The more you exercise, the more energy you’ll have, so eventually you’ll feel ready for a little more. The key is to commit to some moderate physical activity—however little—on most days. As exercising becomes a habit, you can slowly add extra minutes or try different types of activities. If you keep at it, the benefits of exercise will begin to pay off.

You don’t have to suffer to get results

Research shows that moderate levels of exercise are best for most people . Moderate means:

• That you breathe a little heavier than normal, but are not out of breath. For example, you should be able to chat with your walking partner, but not easily sing a song.
• That your body feels warmer as you move, but not overheated or very sweaty.

Can’t find time to exercise during the week? Be a weekend warrior

A recent study in the United Kingdom found that people who squeeze their exercise routines into one or two sessions during the weekend experience almost as many health benefits as those who work out more often. So don’t let a busy schedule at work, home, or school be an excuse to avoid activity. Get moving whenever you can find the time—your mind and body will thank you!

Even when you know that exercise will help you feel better, taking that first step is still easier said than done. Obstacles to exercising are very real—particularly when you’re also struggling with a mental health issue.

Here are some common barriers and how you can get past them.

Feeling exhausted. When you’re tired, depressed, or stressed, it seems that working out will just make you feel worse. But the truth is that physical activity is a powerful energizer. Studies show that regular exercise can dramatically reduce fatigue and increase your energy levels. If you are really feeling tired, promise yourself a quick, 5-minute walk. Chances are, once you get moving you’ll have more energy and be able to walk for longer.

Feeling overwhelmed. When you’re stressed or depressed, the thought of adding another obligation to your busy daily schedule can seem overwhelming. Working out just doesn’t seem practical. If you have children, finding childcare while you exercise can also be a big hurdle. However, if you begin thinking of physical activity as a priority (a necessity for your mental well-being), you’ll soon find ways to fit small amounts of exercise into even the busiest schedule.

Feeling hopeless. Even if you’ve never exercised before, you can still find ways to comfortably get active. Start slow with easy, low-impact activities a few minutes each day, such as walking or dancing.

Feeling bad about yourself. Are you your own worst critic? It’s time to try a new way of thinking about your body. No matter your weight, age or fitness level, there are plenty of others in the same boat. Ask a friend to exercise with you. Accomplishing even the smallest fitness goals will help you gain body confidence and improve how you think about yourself.

Feeling pain. If you have a disability, severe weight problem, arthritis, or any injury or illness that limits your mobility, talk to your doctor about ways to safely exercise . You shouldn’t ignore pain, but rather do what you can, when you can. Divide your exercise into shorter, more frequent chunks of time if that helps, or try exercising in water to reduce joint or muscle discomfort.

Many of us find it hard enough to motivate ourselves to exercise at the best of times. But when you feel depressed, anxious, stressed or have another mental health problem, it can seem doubly difficult. This is especially true of depression and anxiety, which can leave you feeling trapped in a catch-22 situation. You know exercise will make you feel better, but depression has robbed you of the energy and motivation you need to work out, or your social anxiety means you can’t bear the thought of being seen at an exercise class or running through the park.

Start small. When you’re under the cloud of anxiety or depression and haven’t exercised for a long time, setting extravagant goals like completing a marathon or working out for an hour every morning will only leave you more despondent if you fall short. Better to set achievable goals and build up from there.

Schedule workouts when your energy is highest. Perhaps you have most energy first thing in the morning before work or school or at lunchtime before the mid-afternoon lull hits? Or maybe you do better exercising for longer at the weekends. If depression or anxiety has you feeling tired and unmotivated all day long, try dancing to some music or simply going for a walk. Even a short, 15-minute walk can help clear your mind, improve your mood, and boost your energy level. As you move and start to feel a little better, you’ll often boost your energy enough to exercise more vigorously—by walking further, breaking into a run, or adding a bike ride, for example.

Focus on activities you enjoy. Any activity that gets you moving counts. That could include throwing a Frisbee with a dog or friend, walking laps of a mall window shopping, or cycling to the grocery store. If you’ve never exercised before or don’t know what you might enjoy, try a few different things. Activities such as gardening or tackling a home improvement project can be great ways to start moving more when you have a mood disorder—as well as helping you become more active, they can also leave you with a sense of purpose and accomplishment.

Be comfortable. Wear clothing that’s comfortable and choose a setting that you find calming or energizing. That may be a quiet corner of your home, a scenic path, or your favorite city park.

Reward yourself. Part of the reward of completing an activity is how much better you’ll feel afterwards, but it always helps your motivation to promise yourself an extra treat for exercising. Reward yourself with a hot bubble bath after a workout, a delicious smoothie, or with an extra episode of your favorite TV show, for example.

Make exercise a social activity. Exercising with a friend or loved one, or even your kids, will not only make exercising more fun and enjoyable, it can also help motivate you to stick to a workout routine. You’ll also feel better than if you were exercising alone. In fact, when you’re suffering from a mood disorder such as depression, the companionship can be just as important as the exercise.

Easy ways to move more that don’t involve the gym

Don’t have a 30-minute block of time to dedicate to yoga or a bike ride? Don’t worry. Think about physical activity as a lifestyle rather than just a single task to check off your to-do list. Look at your daily routine and consider ways to sneak in activity here, there, and everywhere.

Move in and around your home. Clean the house, wash the car, tend to the yard and garden, mow the lawn with a push mower, sweep the sidewalk or patio with a broom.

Sneak activity in at work or on the go. Bike or walk to an appointment rather than drive, use stairs instead of elevators, briskly walk to the bus stop then get off one stop early, park at the back of the lot and walk into the store or office, or take a vigorous walk during your coffee break.

Get active with the family. Jog around the soccer field during your kid’s practice, make a neighborhood bike ride part of your weekend routine, play tag with your children in the yard, go canoeing at a lake, walk the dog in a new place.

Get creative with exercise ideas. Pick fruit at an orchard, boogie to music, go to the beach or take a hike, gently stretch while watching television, organize an office bowling team, take a class in martial arts, dance, or yoga.

Make exercise a fun part of your everyday life

You don’t have to spend hours in a gym or force yourself into long, monotonous workouts to experience the many benefits of exercise. These tips can help you find activities you enjoy and start to feel better, look better, and get more out of life.

More Information

• Greer, T. L., Trombello, J. M., Rethorst, C. D., Carmody, T. J., Jha, M. K., Liao, A., Grannemann, B. D., Chambliss, H. O., Church, T. S., & Trivedi, M. H. (2016). Improvements in psychosocial functioning and health-related quality of life following exercise augmentation in patients with treatment response but non-remitted major depressive disorder: Results from the TREAD study. Depression and Anxiety, 33(9), 870–881. Link
• Kandola, A., Vancampfort, D., Herring, M., Rebar, A., Hallgren, M., Firth, J., & Stubbs, B. (2018). Moving to Beat Anxiety: Epidemiology and Therapeutic Issues with Physical Activity for Anxiety. Current Psychiatry Reports, 20(8), 63. Link
• Aylett, E., Small, N., & Bower, P. (2018). Exercise in the treatment of clinical anxiety in general practice – a systematic review and meta-analysis. BMC Health Services Research, 18(1), 559. Link
• Stubbs, B., Vancampfort, D., Rosenbaum, S., Firth, J., Cosco, T., Veronese, N., Salum, G. A., & Schuch, F. B. (2017). An examination of the anxiolytic effects of exercise for people with anxiety and stress-related disorders: A meta-analysis. Psychiatry Research, 249, 102–108. Link
• Kandola, A. A., Osborn, D. P. J., Stubbs, B., Choi, K. W., & Hayes, J. F. (2020). Individual and combined associations between cardiorespiratory fitness and grip strength with common mental disorders: A prospective cohort study in the UK Biobank. BMC Medicine, 18(1), 303. Link

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The 100 Best Books of the 21st Century: A Printable List

By The New York Times Books Staff Aug. 26, 2024

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The New York Times Book Review I've I want THE 100 BEST BOOKS OF THE 21ST CENTURY read to it read it 1 My Brilliant Friend, by Elena Ferrante 26 26 Atonement, by lan McEwan 2 The Warmth of Other Suns, by Isabel Wilkerson 27 Americanah, by Chimamanda Ngozi Adichie 3 Wolf Hall, by Hilary Mantel 28 Cloud Atlas, by David Mitchell 4 The Known World, by Edward P. Jones 29 The Last Samurai, by Helen DeWitt 5 The Corrections, by Jonathan Franzen 30 Sing, Unburied, Sing, by Jesmyn Ward 6 2666, by Roberto Bolaño 31 White Teeth, by Zadie Smith 7 The Underground Railroad, by Colson Whitehead 32 The Line of Beauty, by Alan Hollinghurst 8 Austerlitz, by W.G. Sebald 33 Salvage the Bones, by Jesmyn Ward 9 Never Let Me Go, by Kazuo Ishiguro 34 Citizen, by Claudia Rankine 10 Gilead, by Marilynne Robinson 35 Fun Home, by Alison Bechdel 11 The Brief Wondrous Life of Oscar Wao, by Junot Díaz 36 Between the World and Me, by Ta-Nehisi Coates 12 The Year of Magical Thinking, by Joan Didion 37 The Years, by Annie Ernaux 13 The Road, by Cormac McCarthy 38 The Savage Detectives, by Roberto Bolaño 14 Outline, by Rachel Cusk 39 A Visit From the Goon Squad, by Jennifer Egan 15 Pachinko, by Min Jin Lee 40 H Is for Hawk, by Helen Macdonald 16 The Amazing Adventures of Kavalier & Clay, by Michael Chabon 41 Small Things Like These, by Claire Keegan 17 The Sellout, by Paul Beatty 42 A Brief History of Seven Killings, by Marlon James 18 Lincoln in the Bardo, by George Saunders 43 Postwar, by Tony Judt 19 Say Nothing, by Patrick Radden Keefe 44 The Fifth Season, by N.K. Jemisin 20 Erasure, by Percival Everrett 45 The Argonauts, by Maggie Nelson 21 Evicted, by Matthew Desmond 46 The Goldfinch, by Donna Tartt 22 22 Behind the Beautiful Forevers, by Katherine Boo 47 A Mercy, by Toni Morrison 23 Hateship, Friendship, Courtship, Loveship, Marriage, by Alice Munro 48 Persepolis, by Marjane Satrapi 24 The Overstory, by Richard Powers 49 The Vegetarian, by Han Kang 25 25 Random Family, by Adrian Nicole LeBlanc 50 Trust, by Hernan Diaz I've I want read to it read it

The New York Times Book Review I've I want THE 100 BEST BOOKS OF THE 21ST CENTURY read to it read it 51 Life After Life, by Kate Atkinson 52 52 Train Dreams, by Denis Johnson 53 Runaway, by Alice Munro 76 77 An American Marriage, by Tayari Jones 78 Septology, by Jon Fosse Tomorrow, and Tomorrow, and Tomorrow, by Gabrielle Zevin 54 Tenth of December, by George Saunders 55 The Looming Tower, by Lawrence Wright 56 The Flamethrowers, by Rachel Kushner 57 Nickel and Dimed, by Barbara Ehrenreich ཤྲཱ རྒྱ སྐྱ A Manual for Cleaning Women, by Lucia Berlin The Story of the Lost Child, by Elena Ferrante Pulphead, by John Jeremiah Sullivan. Hurricane Season, by Fernanda Melchor 58 Stay True, by Hua Hsu 83 When We Cease to Understand the World, by Benjamín Labatut 59 Middlesex, by Jeffrey Eugenides 84 The Emperor of All Maladies, by Siddhartha Mukherjee 60 Heavy, by Kiese Laymon 85 Pastoralia, by George Saunders 61 Demon Copperhead, by Barbara Kingsolver 86 Frederick Douglass, by David W. Blight 62 10:04, by Ben Lerner 87 Detransition, Baby, by Torrey Peters 63 Veronica, by Mary Gaitskill 88 The Collected Stories of Lydia Davis 64 The Great Believers, by Rebecca Makkai 89 The Return, by Hisham Matar 65 The Plot Against America, by Philip Roth 90 The Sympathizer, by Viet Thanh Nguyen 66 We the Animals, by Justin Torres 91 The Human Stain, by Philip Roth 67 Far From the Tree, by Andrew Solomon 92 The Days of Abandonment, by Elena Ferrante 68 The Friend, by Sigrid Nunez 93 Station Eleven, by Emily St. John Mandel 69 59 The New Jim Crow, by Michelle Alexander 94 On Beauty, by Zadie Smith 10 70 All Aunt Hagar's Children, by Edward P. Jones 95 Bring Up the Bodies, by Hilary Mantel 71 The Copenhagen Trilogy, by Tove Ditlevsen 96 Wayward Lives, Beautiful Experiments, by Saidiya Hartman 72 22 Secondhand Time, by Svetlana Alexievich 97 Men We Reaped, by Jesmyn Ward 73 The Passage of Power, by Robert A. Caro 98 Bel Canto, by Ann Patchett 74 Olive Kitteridge, by Elizabeth Strout 99 How to Be Both, by Ali Smith 75 15 Exit West, by Mohsin Hamid 100 Tree of Smoke, by Denis Johnson I've I want read to it read it

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The 4 Key Strengths of China’s Economy — and What They Mean for Multinational Companies

• Mitch Presnick
• James B. Estes

Companies that fail to understand them risk falling behind.

China’s hybrid “state capitalist” system, driven by centralized planning and fierce competition, has led to dominance in critical technological fields and emerging markets. Western multinational corporations are advised to adopt a pragmatic approach to capitalize on four key strengths of China’s economy: its innovation ecosystem, its investment in the Global South, its ultra-competitive markets, and its vast consumer base. Those who fail to engage risk losing global revenue and strategic opportunities.

In 1978, Deng Xiaoping launched his “Reform and Opening” policy to leverage Western technology and know-how for China’s development. It was a politically risky move: Ideological hardliners in the Communist Party resented the implicit assumption of China’s economic backwardness under socialism — and the superiority of the capitalist West. But Deng recognized that China’s modernization required both pragmatism and humility.

• MP Mitch Presnick is a visiting fellow of practice at the Fairbank Center for Chinese Studies at Harvard University. He is the founder and former chair & CEO of Super 8 Hotels China, the founder and former managing director of the China practice of APCO Worldwide, a Washington D.C. advisory and advocacy firm, and the former vice chair of the American Chamber of Commerce in China.
• JE James B. Estes is a senior at St. Paul’s School, Concord New Hampshire. He is research assistant to visiting fellow of practice Mitch Presnick at the Fairbank Center of Chinese Studies at Harvard University. He is co-founder and project director for educational startup company Reason & Rationality LLC.

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Article Contents

1. introduction, 2. from green growth to green crimes, 3. disrupting the sustainability narrative, 4. critical insights on the definition of ecocide, 5. changing the question: from iel principles to socio-ecological realities, 6. conclusion, acknowledgement.

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Ecocide, Sustainable Development and Critical Environmental Law Insights

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Liana Georgieva Minkova, Ecocide, Sustainable Development and Critical Environmental Law Insights, Journal of International Criminal Justice , Volume 22, Issue 1, March 2024, Pages 81–97, https://doi.org/10.1093/jicj/mqae006

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Advocates of the criminalization of ecocide face a dilemma: how to address activities that bring socio-economic benefits and cause severe environmental damage. The solution has generally been seen in the integration of international environmental law (IEL) norms, such as balancing sustainability with development, into the definition of ecocide. This article challenges the uncritical adoption of IEL norms in ecocide debates and explores the socio-ecological implications of relying on those norms in future trials at the International Criminal Court. While this article does not offer a new definition of ecocide, by borrowing insights from critical environmental law and studies of law in the Anthropocene it proposes a new approach for engaging with the question of ecocide, namely, by embracing reflexivity and normativity in legal practice.

In June 2023, the International Criminal Court (ICC) Office of the Prosecutor announced plans to complete new policies on ‘environmental crimes’ over the next two years. 1 While ICC jurisdiction is currently limited to wartime environmental crimes, 2 international lawyers have argued that peacetime ‘ecocide’ should be similarly criminalized. 3 Historically, war has been the most environmentally destructive activity, but in the age of the new proposed geological epoch of the Anthropocene 4 it has been replaced by the extraction, production and distribution of goods and services that fuel economic growth.

In 2021, the Stop Ecocide Foundation convened an independent expert panel (IEP) on the definition of ecocide. 5 According to the IEP: ‘“ecocide” means 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.’ 6 Ecocide could be perpetrated through a broad range of means, from the destruction of ecosystems as a result of dam construction, to mass deforestation and species extinction following the establishment of palm oil plantations. To distinguish ecocide from lawful economic activities that might nevertheless cause severe environmental harm, the IEP proposed that only ‘wanton’ acts should be punished, where ‘wanton’ refers to conducts committed ‘with reckless disregard for [environmental] damage which would be clearly excessive in relation to the social and economic benefits anticipated ’. 7 Here, the IEP follows international environmental law (IEL), and more specifically, the idea of ‘balancing’ environmental harms against socio-economic benefits, embodied in the concept of sustainable development. 8

This article borrows insights from critical environmental law studies 9 and the literature on IEL in the Anthropocene 10 to elucidate the problems with incorporating the logic of ‘balancing’ sustainability and development into the definition of ecocide. With reference to the examples of dam construction and the palm oil industry, this article shows that the wantonness requirement in the IEP’s definition creates the misleading perception that abstract concepts such as ‘environmental costs’ and ‘socio-economic benefits’ can be separated and determined in practice. Furthermore, because the wantonness requirement is concerned only with unsustainable development, rather than with the limitless pursuit of growth as such, it risks incentivizing potential ecocide perpetrators to engage in greenwashing activities. This ecocide definition risks perpetuating ‘business as usual’ 11 instead of ushering a new era of environmental justice.

The wantonness requirement has already triggered criticism among legal scholars for introducing ‘anthropocentric’ considerations into the definition of ecocide. 12 This article contributes to the discussion by integrating such arguments into a more comprehensive theoretical framework, which explores the logic behind IEL rules, its socio-ecological consequences and alternative approaches to engaging with the criminalization of ecocide in international criminal law (ICL). Those approaches include embracing reflexivity — engaging in self-critical behaviour to revise the legal system’s core commitments 13 — and embracing normativity — giving up on the pretence of objectivity and acknowledging the inevitability of morally-charged decisions when addressing environmental harm. 14 Specifically, this article seeks to shift the focus of ecocide debates away from the question of how best to integrate IEL norms, such as balancing sustainability with development, within ICL, and towards (1) a critical reflection on the underlying logic of IEL and (2) an inquiry into the new tools which ICC judges would have to be equipped with to address environmental harm in the Anthropocene. 15 As noted by Mai and Boulot, elucidating the inadequacies of the current regime of international environmental governance is the necessary first step towards reforming IEL to meet the challenges of the Anthropocene. 16 Consequently, the goal of this article is not to offer a new and revised definition of ecocide, but rather to highlight the socio-legal questions which any proposal for the criminalization of ecocide should engage with.

This article also contributes to the proliferating critical scholarship on ecocide. 17 Cusato and Jones similarly borrow insights from critical legal studies and suggest that the proposed new crime of ecocide would obfuscate protracted forms of socio-ecological violence such as extractivism and neo-colonialism. 18 The authors focus on both the inaptitude of ICL to deal with structural violence and the fact that most ecocide definitions replicate the fraught logic of sustainable development. 19 In this article, I focus on a more specific aspect of that debate, namely, the balancing requirement found in recent ecocide definitions, and do not seek to answer to the broader question of whether or not ecocide should be criminalized considering the limitations of the ICL system. Nevertheless, I hope to contribute to the work of Cusato and Jones and other critical scholars by exploring how the proposed new crime of ecocide might work in practice in the ICC courtroom, alongside the possibilities for engaging in a self-critical behaviour within the ICL field.

Finally, an important caveat is worth mentioning. Unlike ICL, which focuses on a limited number of core crimes, IEL is a broad system composed of numerous distinct regimes, including on climate change, air pollution, marine pollution and biodiversity. 20 Rather than focusing on a specific IEL regime, this article explores a concept that has become influential in the field as a whole, namely, sustainable development. While this concept touches upon many issues, as illustrated by the United Nations Sustainable Development Goals, this article focuses on one particular aspect of it — the logic of balancing environmental costs and socio-economic benefits.

Section 2 of this article discusses how sustainable development has influenced the definition of ecocide; Section 3 provides insights from critical environmental law and IEL in the Anthropocene; Section 4 uses those insights to highlight the problematic assumptions which ecocide definitions have borrowed from IEL; Section 5 discusses an alternative approach for engaging with socio-ecological harm during ecocide trials; Section 6 concludes.

The Report of the 1972 Stockholm Conference on the Human Environment concluded that most environmental problems faced by the Global South were ‘caused by under-development’ 21 and opened the door to a new way of thinking about development goals and environmentalism — as complimentary, as opposed to incompatible. 22 The concept of ‘sustainable development’ was affirmed in the 1992 Rio Declaration on Environment and Development. 23 Its ubiquity has led commentators to conclude that environmentalism has ‘morph[ed]’ into sustainability. 24

The compelling idea of reconciling environmental protection with socio-economic development has also found place in the 2021 IEP’s definition of ecocide. As observed by Robinson, the environmental footprint of certain activities, such as producing electronic devices and air travel, would likely meet the ‘severe and either widespread or long-term’ threshold of ecocide and, to avoid the criminalization of otherwise beneficial activities, only those conducts which have been carried out with wanton disregard for their environmental consequences should be punished. 25 The IEP has further stressed that environmental law often ‘involves a balancing of environmental harms against social and economic benefits, which is expressed in the principle of sustainable development’. 26 Other recently proposed definitions of ecocide follow a similar approach. 27 In 2021, the Group of Experts at UCLA’s Promise Institute for Human Rights proposed that acts of ‘responsible development’ should not be punished as ecocide. 28 Gillett’s 2022 definition also refers to ‘unsustainable harm to the natural environment’, where the term ‘unsustainable’ refers to environmental law principles, including ‘weighing social and economic benefits’. 29

Adopting the logic of existing environmental law serves to gain much-needed state support for the incorporation of ecocide into the Rome Statute. 30 While some states, such as Vanuatu, have supported the criminalization of ecocide, 31 Gauger et al.’s archival analysis reveals that historically most states have remained reluctant to do so. 32 Furthermore, environmental problems need urgent solutions. It is quicker to introduce new legal rules that follow established principles than to seek major reforms of international law. Supporters have insisted that criminalizing ecocide does not involve ‘a radical expansion of the foundations of western law’. 33

But while the adoption of familiar ideas, such as that of balancing environmental protection with socio-economic benefits, might be ‘optically (and especially politically ) appealing’, 34 it also bears significant costs. The uncritical reliance on the sustainable development narrative neglects the fact that this narrative has been subject to significant contestation in critical environmental law scholarship, as discussed in the following section.

A. Critical Environmental Law

Mindful of the power of legal discourse to shape reality and of the intersection between law, politics and economics, critical environmental law explores ‘how environmental law stabilizes or disrupts existing social orders’. 35 Borrowing insights from Foucault’s theory of the production of knowledge, critical scholars have observed that by institutionalizing ‘particular systems of meaning’, legal discourses ‘clos[e] off alternative ways of thinking about’ environmental problems. 36 In other words, IEL helps ‘universalize and normalize’ certain perceptions of nature, 37 and more specifically, those perceptions which protect private and sovereign property and enable the continued exploitation of the environment. 38 Similarly, as discussed in Section 4, the manner in which the definition of ecocide has been recently framed risks legitimizing continuous economic growth and market environmentalism by obfuscating their long-term environmental impacts. 39

Critical environmental law studies further question the assumption that the progressive institutionalization of international legal rules would offer greater protection to nature. This is particularly relevant for IEL, where states’ commitments are often framed in incremental terms. For instance, the 2015 Paris Agreement envisions state parties to make a ‘progression’ each time they renew their national commitments to mitigating climate change. 40 Similarly, proposals to criminalize ecocide approach the latter as ‘a natural progression’ of the existing system of international law. 41 This progressivist narrative has enabled the adoption of IEL norms into ICL to be framed as the natural development of both legal systems. 42 Regarding IEL, Voigt has observed that, with few exceptions, multilateral environmental agreements do not offer a rigorous framework of state liability for breaches of environmental norms. 43 Some regimes, such as the Convention on Long-Range Transboundary Air Pollution and the Paris Agreement, do not contain any rules on state liability. 44 In terms of enforcement tools, IEL has increasingly relied on managerial techniques, such as monitoring, capacity-building and non-compliance mechanisms instead of interstate litigation. 45 Consequently, on this account, a new criminal responsibility provision would significantly enhance the enforcement power of IEL by providing it with the harshest sanction available to society, namely, the incarceration of individual persons. The criminalization of ecocide is also seen to contribute to the development of ICL by taking on the most pressing new domain of global harm and justice. 46 As observed by Kooijman, ecocide is presented as a necessary extension to peacetime situations of the legal protection that has already been offered to nature during the war. 47

However, as Stevenson’s comparative study reveals, compliance with international environmental legal rules could have adverse impact on nature when the legal rules in question have failed to engage with the scale and complexity of environmental harm. 48 Consequently, critical environmental law reveals as deeply problematic the liberal legalist logic that ‘any [legal] action is better than no action’. 49 A greater source of concern is not the quantity of international environmental legal norms, but the quality of those norms. 50

The abundant references to IEL’s practice of balancing environmental considerations with the right to socio-economic development, which are found in recent definitions of ecocide create the assumption that this logic is itself unproblematic. The main issue of concern for the drafters of ecocide definitions appears to be how best to translate the logic of sustainable development into ICL and, more specifically, whether to use terms such as ‘wanton’, ‘responsible development’ or (a prohibition of) ‘unsustainable harm to the natural environment’. 51 As observed by critical scholars, by focusing on the appropriate articulation of IEL principles within criminal law, the debate on ecocide precludes the bigger question of whether those principles offer adequate protection to the environment in the first place. 52 In contrast, critical environmental law studies explore the extent to which IEL has become complicit in the conditions driving environmental destruction, including the global climate change crisis. 53 After a discussion of the insights which critical and revisionist studies offer in that regard, this article proceeds with an analysis of their implications for the criminalization of ecocide in Section 4.

B. The Unsustainability of IEL Norms

IEL has incurred significant criticism for its ‘worrying lack of a normative ambition’ to bring up the fundamental change in socio-economic practices that are required to face the current global environmental crisis. 54 As observed by Viñuales: ‘legal institutions are built in such a way that socio-economic growth/development is organized first and only then environmental protection concerns are added, as external and additional.’ 55 The popular conception of sustainable development that has emerged from documents such as the 1972 Stockholm Declaration, the 1987 Brundtland Report and the 1992 Rio Declaration, or what Adams calls ‘mainstream’ sustainable development, 56 has sought modest reforms and adjustments to production processes rather than any radical departures from the Global North’s capitalist model of limitless growth. 57

Consequently, IEL has been criticized for failing to prevent irreparable environmental harm and ‘keep humanity from crossing critical planetary boundaries’. 58 The ‘narrative of sustainable development’ has ‘naturalized’ and instituted ‘as common sense’ the proposition that humans could continue to exploit nature without repercussions. 59 IEL regulations have implied that economic growth has ‘no set limits … beyond which lies ecological disaster’. 60 Sustainable development has also triggered criticism for supporting the flawed assumption that novel mechanisms of ‘ green economic growth’, such as payment-for-ecosystem-services and carbon offsets, would be sufficient to decouple the international economy from the ensuing environmental degradation from ‘conventional economic growth’. 61 Because the recent definitions of ecocide borrow from IEL the logic of balancing development with sustainability, as observed by Cusato and Jones, engaging with such criticism in ICL debates is of crucial significance. 62

C. IEL in the Anthropocene

IEL’s sustainability narrative has appeared particularly problematic in the context of the global climate crisis. As observed by Verschuuren, current IEL appears ‘insufficient to deal with the new challenges we face in the Anthropocene’: Challenges that do not arise from narrowly defined local environmental crises, but at the level of the ‘Earth system’. 63 This line of reasoning reflects a broader argument that the existing forms of international organization are ill-equipped for the Anthropocene. According to Dryzek and Pickering, those forms of organization have been developed under the conditions of the Holocene — the geological epoch of the past 12,000 years which has been marked by ‘unusual stability in the Earth system’. 64 This makes international organization unable to deal with the challenges brought by the Anthropocene, which marks a fundamental break with the Holocene conditions and ushers an age of ‘surprise, uncertainty and change’ about the behaviour of the Earth system. 65 Key to Dryzek and Pickering’s argument is the proposition that the Anthropocene should not be perceived as ‘a multiplication of environmental challenges’ that could be addressed simply by ‘an intensification of the existing repertoire of responses’. Instead, the Anthropocene requires a ‘state shift’ in common perceptions about the role of the economy in environmental change. 66

Similar to other socio-political institutions developed during the Holocene, IEL still works on the assumption that ‘if the Earth System was left by itself with little anthropogenic interference’ it would eventually go back to a stable equilibrium. 67 On this account, the role of IEL is to impose certain constraints or regulations on socio-economic activities (which would somewhat reduce human impact on nature) without seeking to reformulate the very activities that cause environmental damage. 68 Yet, critical commentators have argued that such reformulations are necessary to build an efficient IEL system, especially in the context of climate change. 69 Simply multiplying legal provisions and ‘strengthening’ existing ones by, for instance, criminalizing unsustainable development, would not be sufficient to make environmental law function more effectively in the Anthropocene.

D. Anthropocentrism in the Anthropocene

Finally, critical environmental scholars have challenged the distinction between the interests of humans (anthropocentrism) and those of the environment (ecocentrism) in IEL discourses. 70 The Anthropocene has erased ‘the boundary between a body and its environment’, making it impossible to comprehend the human existence in isolation from other-than-human bodies. 71 It has been suggested that humans’ embeddedness within ‘nature-as-a-whole’ not only does not exonerate humans’ destructive actions towards the environment but also in fact heightens our responsibility for protecting the Earth system. 72 Nevertheless, critical commentators have cautioned against the reliance on universal references to humanity when assessing environmental harm. As observed by Philippopoulos-Mihalopoulos, because the socio-ecological continuum is ruptured by power imbalances, ‘[w]e are not one humanity facing its responsibility before the Anthropocene’. 73 By reframing the climate crisis as ‘a crisis of human hierarchy’, Grear makes a compelling argument that ecological harm cannot be understood without also understanding social injustices. 74 Thus, separate environmental, class, gender, and race struggles are all underpinned by what Boukli and Kotsakis call ‘transversal harm’, or the harm resulting from the underlying logic of destructive activities, such as extractivism. 75 Yet, as the following section suggests, the proposed definitions of ecocide which borrow from IEL the logic of balancing not only neglect transversal harm but also perpetuate the flawed juxtaposition between ‘humans’ and ‘environment’.

The insights from critical environmental law and studies on IEL in the Anthropocene suggest that the adoption of the logic of balancing environmental costs and socio-economic benefits from IEL into the definition of ecocide could have significant adverse impacts on environmental justice. This section discusses two such impacts: An overly simplified idea of environmental cost–benefit analysis and the possibility of greenwashing development projects without significantly disrupting economic activity. The analysis renders support to the proposition that the criminalization of ecocide might inadvertently further the legitimization of the global capitalist system of exploitation. 76

A. Assuming Away the Complexities of Cost–Benefit Analysis

International law creates the impression that by relying on legal rules to make a particular assessment a person has ‘taken everything into account’. 77 Specifically in the context of ecocide, the incorporation of the wantonness requirement, premised on the IEL logic of balancing environmental protection with development, assumes that environmental ‘costs’ could be assessed on a case-by-case basis, as a temporarily and geographically confined phenomenon, and balanced against the ‘benefits’ of socio-economic development. In practice, however, making such predictions not only requires significant simplifications 78 but also neglects the socio-ecological continuum, as well as its power imbalances. 79

Adams’s observations concerning dam construction provide an apt example. As he notes, the complexity of aquatic ecosystems makes it difficult to assess the full magnitude of the environmental impact of dam construction: That impact is not limited to the construction site but can extend downstream to coastal environments. 80 Nevertheless, in a potential ecocide case concerning dam construction, the defence could argue that the environmental costs have been offset by the significant socio-economic benefits of completing that project. As noted by the World Bank, which has been involved in financing major water infrastructure projects, ‘dams benefit millions of people who rely on their waters for livelihood’. 81 But moving beyond generic assessments to make predictions about the costs and benefits of specific projects is much more challenging. 82 While some groups of people enjoy the benefits of dam construction, such as water supply or hydroelectric power, as the construction of the Bakun Dam in Malaysia demonstrates, the local populations usually bear the high costs of resettlement. 83 Adams observes that, in practice, the resettled communities often receive little or inadequate help because their concerns generally feature only as a ‘secondary problem’ in the environmental impact assessments conducted for big development projects. 84 Thus, environmental harm cannot be separated from socio-economic injustice and cost–benefit analysis merely obfuscate that reality.

The palm oil industry provides another example of cost–benefit analysis problems. Reported negative environmental impacts of oil palm cultivation include widespread deforestation, threatening biodiversity and greenhouse gas emissions. 85 Nevertheless, just as with the example of dams, a defendant, accused of committing an ecocide by clearing a forest to construct an oil palm plantation at its place, could argue that they had expected the socio-economic benefits to have outweighed the environmental costs of that activity. In addition to providing international consumers with cheap commodities, the defendant could argue that palm oil production brings socio-economic benefits to the local populations. 86 The WWF has pointed out that, despite environmental concerns, ‘millions of smallholder farmers’ have been provided with livelihood from palm oil. 87 However, in practice, the distribution of socio-economic benefits from the palm oil production might be less equitable than anticipated. First, Meijaard et al. observe that smallholder farmers might not have easy access to the required resources or technical knowledge to implement reforms that meet the new requirements of ‘sustainable’ palm oil production. 88 The authors suggest that with some support from the government or businesses, smallholder farmers could be sufficiently trained. 89 But this would require additional planning, time and resources, which governments might choose not to invest. Secondly, the palm oil example reveals the often-neglected gender aspect of sustainable development. Julia and White examine the gendered impact of corporate land acquisition for palm oil plantations in Indonesia. 90 Their study reveals that when corporations approach communities to establish plantations, they communicate with local leaders, religious figures and teachers who tend to be all male. In effect, the palm oil industry in Indonesia has contributed to the loss of women’s land rights and the feminization of agricultural labour, which has in turn increased health hazards to women. 91

Unfortunately, by uncritically adopting the logic of environmental cost–benefit analysis from IEL, the ‘wantonness’ element of ecocide also imports its reductionist and linear mentality and perpetuates the simplistic idea of the possibility of assessing temporarily and spatially confined costs and benefits of development projects. The reality of ecocide proceedings is going to be much more complicated. The wantonness element requires not one, but two levels of cost–benefit analysis. Before the Court considers whether the environmental costs of a certain activity have been balanced off by its perceived socio-economic benefits, it would first have to assess whether the costs to some societies have been offset by the benefits to others. The assessment would be further complicated by the fact that, if the Court seeks to conduct a comprehensive analysis of the costs and benefits concerning, for instance, resettled communities, it would have to assess both the tangible and intangible socio-economic impact of development projects on those communities. Such assessments could pose a significant resource burden on the ICC in terms of both time and funding for investigations. 92 In effect, to make ecocide proceedings possible at the Court, much of the complexities of cost–benefit analysis would have to be assumed away, in the same way as economic actors, such as dam project planners, do.

In effect, the incorporation of the logic of balancing and cost–benefit analysis in the definition of ecocide is going to contribute to a process that Boukli and Kotsakis call ‘compartmentaliz[ing]’ socio-ecological harm, by dividing it into separate components and employing different legal instruments to deal with each one. 93 This fragmentation of harm and responsibility creates ‘the illusion of the effective legal response’ 94 to specific issues fixed as problems under a given legal regime. At the same time, because compartmentalized legal responses do not address the transversal nature of socio-ecological harm, they perpetuate ‘disaster tolerance’. 95 In the case of ecocide, the introduction of the balancing requirement institutes a clear separation not only between the experiences of human and other-than-human bodies but also between forms of environmental harm, namely ‘sustainable’ and ‘unsustainable’. Such a separation is enabled by the idea that the limits of the ICC mandate preclude it from addressing all forms of severe environmental harm, but it could nevertheless offer some justice by addressing the unsustainable forms of such harm. However, this idea is deeply problematic as it neglects the complexity of socio-ecological harm, the ‘mechanisms that enable the perpetuation of environmental harm’, 96 and the power imbalances that have influenced a particular definition of ‘sustainability’ under an IEL that favours developmentalism and extractivism.

Nevertheless, critical environmental law scholars do not necessarily reject the idea of employing legal tools of responsibility altogether. 97 Rather they suggest a rethinking of the core ideas surrounding the concept of liability in legal systems. Section 5 offers insights in this regard which aim to contribute to the process of rethinking core ideas.

B. Market Environmentalism and Greenwashing

Because, similar to IEL, the wantonness requirement does not question economic growth as such, but merely adds another layer of regulation to it, this definition of ecocide risks incentivizing the greenwashing of economic activities at the expense of more substantive rethinking of the environmental impacts of the modern economy. Such greenwashing activities are enabled by the logic of market environmentalism, which holds that the negative externalities of economic growth could be offset by purchasing environmental goods and services. 98 Examples include the market for ‘ecosystem services’, understood as the capacity of natural resources to serve as carbon sinks, provide habitats and filter fresh water. 99 The model for purchasing those goods has been generally referred to as payment-for-ecosystem-services 100 and provides government officials and CEOs with ample opportunities to green their activities. Yet, in practice, market environmentalism risks facilitating, instead of mitigating, environmental harm by failing to offset the latter and sustaining the illusion of limitless (green) growth. 101

For instance, as a deterrent against potential ecocide prosecutions, CEOs might opt for purchasing ecosystem services, such as planting trees to serve as carbon sinks, and claim that the environmental costs of their activities have been offset to a degree that is exceeded by socio-economic benefits. The quality of environmental protection offered by purchasing ecosystem services should in theory be guaranteed by the conventional market-based logic, according to which the byers (of ecosystem services) will not pay or pay less for a low-quality service (unsustainably managed ecosystems). However, as observed by McAfee, in practice, the payment-for-ecosystem-services model challenges the conventional economic logic. 102 The actual environmental effects of an ecosystem service, for instance, how much emissions have been saved, are not only temporally and spatially distant from a particular transaction but might even be ‘virtually impossible to measure’. 103 A further complication stems from how difficult it is to generalize about ecosystem operation patterns. To be effective, ecosystem analysis needs to be conducted on a case-by-case basis. 104 Yet, because that approach would inevitably increase transaction costs, analyses tend to assume complexities away. 105 Consequently, ecologists have cautioned that the popularization of ecosystem services based on a flawed understanding of how a particular ecosystem works might increase environmental degradation. 106 The basic economic logic is equally questionable when examining the buyer’s side. An important question in that regard is: What is it about environmental services that the buyer values and seeks to purchase? Hypothetical ecocide perpetrators might buy environmental services not out of genuine concern for environmental protection but merely to ‘green’ their economic activity for the purposes of avoiding sanctions and gaining public approval. In that case, environmental services become valued on the market for the appearance of providing environmental protection rather than for their actual environmental performance, which itself is difficult to assess. The implication is that the international payment-for-ecosystem-services market might function ‘efficiently’, in the sense that it enables the purchase of the appearance of environmental protection, and simultaneously has an environmentally destructive impact.

The ubiquitous nature of market environmentalism tools in the modern international economy makes it much easier for potential ecocide suspects to use that as an excuse to continue business as usual. Notably, as observed by Heller, the wantonness requirement includes a subjective mental element test, which concerns the accused’s comprehension of the risk of environmental damage, rather than an objective assessment of that risk. 107 While his analysis concerns coal plants, this hypothetical could also be applied to carbon offsetting activities. Specifically, in an ecocide trial, the defendant would not have to prove that the purchased environmental services, such as carbon offsets or conservation projects, actually offset the environmental costs in question, but simply that they believed that to be the case. This raises complex questions of calculation models and the credibility of certifying agencies. Furthermore, the defendant’s expectations concerning the amount of environmental harm that needed offsetting are also likely to vary greatly depending on the scientific assessments they have chosen to rely on. In effect, the ecocide trial is likely to turn into ‘a battle of experts’ — those of the defence against those of the prosecution — ‘with the verdict being left in the hands of judges with little economic or scientific training’. 108 Because the burden of proof lies with the prosecution, the wantonness element risks incentivizing government officials and CEOs to simply greenwash their activities instead of implementing more substantial reforms in their modes of conduct.

The strategy of absorbing environmental issues into the existing ‘unsustainable structures’ of IEL is unlikely to be successful in the long run. 109 The speed with which the Earth system is transforming in the Anthropocene has rendered inadequate incremental reforms. 110 The attempt to construct the concept of ecocide around that of sustainable development could not merely result in the adoption of another ineffective environmental norm, but also make it even harder to pursue bolder reforms in the future . For that reason, legal scholars have proposed a new research agenda for IEL to reconceptualize legal norms and make them better equipped to face the Anthropocene. 111 Some have proposed the development of ‘new legal axioms’ 112 while others have others have called for the establishment of ‘international environmental law 2.0’. 113

Similarly, this section proposes to change the question which has so far dominated ecocide discussions: from ‘How best to integrate IEL principles into the definition?’ to ‘What tools should international judges be equipped with to make judgments concerning environmental harm in the Anthropocene?’. Borrowing insights from critical studies, two such tools are discussed: Embracing reflexivity and embracing normativity. Both tools have implications for the socio-economic consequences of ecocide trials. But, following Dryzek and Pickering’s approach, 114 instead of prescribing a particular outcome, such as the adoption of fixed principles, they prescribe a broader framework for continuous re-assessment of how ecocide should be prosecuted in ICL. By switching the framework of the debate — from the existing principles of IEL to the Anthropocene realities of uncertainty and difficult moral choices — the discussion below seeks to provide new foundations for re-engaging with the question of criminal responsibility for ecocide.

A. Embracing Reflexivity

Revisionist approaches to IEL suggest that the stability of international legal rules, an important quality that makes those rules predictable, might become an obstacle in the Anthropocene, with its uncertainties and surprises. For that reason, it has been proposed that IEL should strike a balance between stability and reflexivity. 115 Dryzek and Pickering describe reflexivity as the capacity of international systems ‘to question their own core commitments, and if necessary change themselves in response’. 116 As such, reflexivity constitutes a practice: It provides a basis for (re)evaluation of rules instead of prescribing a particular model of governance. 117 In fact, as early as the 1990s, legal scholars have suggested that environmental law has to ‘bend’ and ‘avoid being locked into rigidly linear behaviour’ to adapt to changing circumstances. 118

An important question asks which actors are reflecting upon and transforming the legal system. 119 Some scholars place the emphasis on the ability of the system as such to act upon itself, rather than on individual actors. 120 But the practice of reflexivity could also be understood as the product of the continuous interaction between actors within the legal field (judges, lawyers, academics, non-governmental organizations, states) and the structure of that field (its core norms and commitments). Even though pre-existing norms constrain the type of reforms which actors might seek to make within the system, those actors could nevertheless engage in critical behaviour and seek revisions of the legal rules. 121

Embracing reflexivity might prove challenging with regard to ecocide. Unlike human rights norms, which tend to be interpreted as ‘living instruments’ that could be adapted to the needs of modern society, 122 ICL is bound by the legality principle which requires fair notice of its rules. Consequently, Rulh’s proposal for maintaining ‘intentional ambiguity’ in the definition of environmental law to enhance the latter’s reflexivity 123 is difficult to square with criminal law.

Nevertheless, some degree of reflexivity, understood as adapting existing legal rules to the changing reality on the ground, is still possible in ICL, as illustrated by the Ntaganda case before the ICC. The charges against Bosco Ntaganda, former Deputy Chief of Staff of the Forces Patriotiques pour la libération du Congo (FPLC), involved the commission of sexual violence against girl soldiers within the FPLC under his command. 124 The existing international legal rules offered only limited protection from violence committed against members of one's own group.Specifically, they protected from within-group violence only the defenceless members of the armed group (for instance, those suffering wounds or sickness) but not the active combatants. 125 Yet, engaging in what has been described as ‘teleological reasoning’, 126 the Trial Chamber and Appeals Chamber concurred that, regardless of the lack of pre-existing rules that specifically addressed the matter: ‘… there is never a justification to engage in sexual violence against any person.’ 127 Thus, the ICC judges recognized for the first time in ICL gender-based crimes committed against members of the perpetrators’ own armed group as war crimes under articles 8(2)(b)(xxii) and 8(2)(e)(vi) Rome Statute. 128 Hence, despite the challenges of navigating the requirements of legality, the transformation of ICL rules to keep up with the changing normative and socio-political reality is possible.

Notably, reflexivity as a practice in ICL should not be confused with the more general notion of judicial creativity or activism, 129 which has attracted negative connotations for infringing upon the legality principle. Indeed, engaging in self-critical behaviour requires proactive behaviour and a certain degree of creativity, but because reflexivity is practice-driven and not outcome-driven, it does not have to result in undue expansions of the scope of ICL rules. In a well-known example, reflecting on the controversy triggered at Nuremberg by the proposition to convict persons for their participation in a conspiracy to commit crimes, 130 the Rome Statute drafters decided to exclude the concept of conspiracy from the text. 131 Nor does reflexivity necessarily result in complex novel interpretations of legal rules. In fact, it could serve to simplify ICL jurisprudence. For instance, after receiving criticism from external commentators, the ICC eventually dismissed the Latin terminology it had used in its early decisions with reference to the mental element of liability in favour of the plain text of Article 30 ICC Statute. 132

These examples show that reflexivity is already a core component of the practice of ICL. The criminalization of ecocide in the face of the looming climate change crisis and the unpredictability of the Anthropocene could offer a new opportunity to rethink the relationship between stability and reflexivity in ICL more generally.

B. Embracing Normativity

To engage in reflexive behaviour, international law should also engage with questions which inevitably require value judgments, such as: What counts as expert knowledge? Which actors claim the authority of expert knowledge? Which voices have remained marginalized? 133 In other words, legal practice should give up on the pretence to be objective and embrace the inevitable necessity of taking morally charged decisions. As noted by Mai and Boulot, the reality is that ‘we are unlikely to “have it all”’ in the Anthropocene, which requires tough choices to be made, such as which life forms to protect, whose interests to prioritize and what time scales to employ. 134 Those choices would be made by all participants in the legal field with reference to the specific functions they perform in that field: Legal scholars and non-governmental organization would make normative choices when advising on a particular definition of ecocide, states — when deciding on whether to support that definition and adopt in into the Rome Statute, and judges — when interpreting and enforcing ecocide in ICC jurisprudence. While the rest of this section focuses specifically on the questions which ICC judges would have to engage with during hypothetical ecocide trials, those are the same questions faced by the advocates, academics and states who are currently debating the definition of ecocide.

A self-critical approach to engaging with the crime of ecocide requires a recognition that normative choices are ‘inescapable’ when designing environmental policies. 135 As noted by political ecologists, concepts such as environmental ‘degradation’ cannot be objectively defined because the construction of their meaning owes as much to scientific methods of assessment as to the morals, interests and values of the persons doing the assessment. 136 ICC judges will inevitably face such normative choices during an ecocide trial as they will have to choose which experts to work with and what models of evaluating harm to rely on. 137 Notably, the IEP has proposed ecocide to be a crime of endangerment: Criminal responsibility would be established for ‘the creation of a dangerous situation’ rather than for the actual materialization of that harm. 138 Consequently, in ecocide trials ICC judges might have to deal with hypothetical future scenarios. Yet, scientific assessments of the likelihood and extent of environmental harm resulting from a specific activity might vary greatly. For instance, commenting on a pipeline extension project, Greenpeace cited studies which had estimated between 10% and 29% chance of a ‘worst case’ oil spill along the Pacific Coast of the USA and Canada as a result of the increased number of oil tankers transporting the new quantities of oil. 139 Such variation in assessments grants significant discretion to the judges. The normative choices which ICC judges would have to make further involve other intersecting considerations such as protecting the rights of the accused (which might require preference for more conservative estimations) and delivering meaningful retribution for the harm suffered by the environment (which might require more ambitious estimations).

A further set of normative questions would be encountered during ecocide trials when trying to account for the interconnectedness between social and environmental harm. 140 ICC judges will first have to decide to what extent to incorporate the concerns of the financially worst-off groups of people when determining the socio-ecological impact of a specific conduct. The environmental costs borne by the poor can remain ‘largely invisible in aggregate economic statistics’. 141 ICC judges could make the choice to rely on aggregate statistics for the purpose of time and resource efficiency or engage in a more rigorous socio-economic assessment. 142 If they chose the second approach, it raises a new question on its own: How to integrate such concerns. One option is to adopt the classic egalitarian logic (ascribing equal value to the benefits of all) and another one — to adopt a prioritarian logic (ascribing more value to the benefits of the worst-off). 143 Neither option is value neutral as they each embody a specific normative commitment: 144 to egalitarianism and redistribution, respectively.

Determining the extent to which the interests of future generations should be featured in environmental assessments requires further normative choices from international judges. Even though some scholars have pointed out that future generations might be of marginal concern to the Court, 145 if ecocide is criminalized, the ICC will have to engage with that question in assessing the extent of the harm caused. 146 ICC judges might choose to follow the popular formula that socio-economic activities should not leave future generations worse-off than present ones. 147 But this formula raises the question: ‘worse-off’ in terms of what ? As observed by Caney, the conventional economic analysis of GDP and resources is incapable of capturing the notion of intergenerational justice. Instead, Caney suggests, future generations should not be left worse-off in terms of ‘capabilities’ — the capabilities to live a healthy life in harmony with other species and the environment. 148 Yet, ‘capabilities’ that include both material and non-material aspects are hard to quantify and any attempts to do so will reintroduce questions of the morality and values that underpin a particular interpretation of a ‘good life’. The ICC judges would, thus, face the choice between the resource-based formula and various manifestations of the capabilities formula. Such decisions will be further complicated by the question of how to reconcile intergenerational justice with other ethics. As noted by Kanbur and Shue, considerations of justice between generations must be balanced with those of justice within generations to avoid imposing further harsh burdens on poor communities. 149 Thus, at any point of the ecocide trial, the judges would have to not only make normative choices but also assess how a particular question interacts with the other ones at stake.

Embracing such decisions might be a challenging endeavour at the ICC, which has generally avoided questions concerning social justice. ICC judges have been eager to emphasize that the Court’s mandate is limited to retributive justice in the form of assessing the charges brought against the individual at trial and excludes ‘political or even humanitarian goals’, 150 such as ‘to restore social justice and to heal the wounds’ of the afflicted communities. 151 Yet, the insights from critical environmental law scholarship suggest that normative choices are inevitable when environmental justice is concerned. As discussed, even if the ICC adopts the linear and reductionist mentality of IEL and assumes away the complexities of environmental assessments and their socio-ecological implications, this would still be a normative choice.

For that reason, engaging with the challenges of making such choices is preferable to the pretence of objective rationality and value neutrality. In this respect, it is crucial that normativity is embraced alongside reflexivity. The former enables an honest account of the rationales behind taking a particular approach in ecocide jurisprudence and the latter — a continuous (re)assessment of the consequences of that approach. Without embracing reflexivity, ecocide jurisprudence would risk institutionalizing ineffective practices. Without embracing normativity, it would be difficult to trace back the source of ineffectiveness and pursue meaningful reforms.

The 2021 IEP’s definition of ecocide was born out of the admirable aspiration to offer greater protection to the environment, while building on familiar IEL principles, such as sustainable development. However, this approach might result in the uncritical integration of concepts and practices with an ambiguous performance record. Instead of reforming the definition of ecocide and the role of IEL principles in it, this article took an alternative approach and proposed a discussion of the challenges that ecocide prosecutions will face in the Anthropocene and the tools ICC judges would need to be equipped with to face those challenges, namely, embracing reflexivity and normativity in legal practice.

In doing so, this article left open the broader question of whether ecocide should be criminalized in ICL at all. For some readers, the difficulties of assessing environmental harm through the medium of criminal law discussed in this article might serve as further evidence to support the argument that the ICL, and the international law system more generally, is ill-equipped for that purpose. Indeed, the inevitable moral dilemmas resulting from the complexity of environmental harm and the risks of further legitimizing extractivism and greenwashing activities by focusing on the individual accused could be taken to confirm the criticism that a growing number of legal scholars have expressed with regard to the proposed criminalization of ecocide. 152

However, the findings of this article could also be interpreted in a different way — as opening new avenues for thinking about both environmental justice and international criminal justice. From this perspective, the uncertainty and complexity of the Anthropocene highlight the urgent necessity of a fundamental rethinking of international law, including ICL. As observed by Grear, ‘law is not a stranger to shifts of meanings’. 153 While the practice of international law, and especially IEL, has historically enabled unsustainable modes of extraction and development, on this account, law and legal argument could also ‘destabiliz[e] meanings’. 154 It is to this destabilizing potential of international law that the processes of critical self-reflection and embracing normativity, as discussed in this article, contribute.

Whether the process of destabilizing unsustainable structures and practices to address environmental harm could or should be accomplished through the medium of ICL specifically is a question that remains open to future debate. What this article aimed to show is that, regardless of which position one takes in that debate, justice for individual acts of ecocide cannot be separated from addressing the broader context of socio-ecological injustices.

I would like to thank Adam Branch, Leila Sadat, the participants at the 2023 ICC Scholars Forum, and the anonymous reviewers for their throughtful comments on this article.

ICC, Office of the Prosecutor, Strategic Plan 2023–2025 , 13 June 2023, available online at https://www.icc-cpi.int/sites/default/files/2023-08/2023-strategic-plan-otp-v.3.pdf (visited 6 February 2023), at 17.

Art. 8(2)(b)(iv) ICCSt.

A. Gauger et al., The Ecocide Project: Ecocide is the Missing 5th Crime Against Peace , Human Rights Consortium (2013), available online at https://sas-space.sas.ac.uk/4830/1/Ecocide_research_report_19_July_13.pdf (visited 21 June 2023).

The Anthropocene is ‘an unofficial scientific term referring to a human imprint on the Earth system that is already so profound as to have reached geological magnitude’. D. Vidas, J. Zalasiewicz, and M. Williams, ‘What Is the Anthropocene – and Why Is It Relevant for International Law?’ 25 Yearbook of International Environmental Law (2015) 3–23, at 3.

Independent Expert Panel for the Legal Definition of Ecocide, Commentary and Core Text , Stop Ecocide Foundation, June 2021, available online at https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf (visited 21 June 2023).

Ibid. , at 5.

Ibid. , emphasis added.

Ibid. , at 10.

A. Philippopoulos-Mihalopoulos, ‘Towards a Critical Environmental Law’, in A. Philippopoulos-Mihalopoulos (ed.), Law and Ecology: New Environmental Foundations (Routledge, 2011) 18–38; A. Philippopoulos-Mihalopoulos, ‘Critical Environmental Law in the Anthropocene’, in L.J. Kotzé (ed.), Environmental Law and Governance for the Anthropocene (Hart Publishing, 2017) 117–136; B. Lange, ‘Foucauldian-inspired Discourse Analysis: A Contribution to Critical Environmental Law Scholarship?’, in A. Philippopoulos-Mihalopoulos (ed.), Law and Ecology: New Environmental Foundations (Routledge, 2011) 39–64; A. Grear, ‘‘Anthropocene, Capitalocene, Chthulucene’: Re-encountering Environmental Law and its ‘Subjects’ with Haraway and New Materialism’, in L.J. Kotzé (ed.), Environmental Law and Governance for the Anthropocene (Hart Publishing, 2017) 77–96; S. Adelman, ‘A Legal Paradigm Shift Towards Climate Justice in the Anthropocene’, 11 Oñati Socio-Legal Series (2021) 44–68; S. Adelman, ‘The Sustainable Development Goals, Anthropocentrism and Neoliberalism’, in D. French and L.J. Kotzé (eds), Sustainable Development Goals: Law, Theory and Implementation (Edward Elgar Publishing, 2018) 15–40; A. Boukli and A. Kotsakis, ‘Transversal Harm and Zemiology: Reconsidering Green Criminology and Mineral Extractivism in Cerro de Pasco, Peru’, Critical Criminology (2023) 1–24; A. Kotsakis and A. Boukli, ‘Transversal Harm, Regulation, and the Tolerance of Oil Disasters’, 12 Transnational Environmental Law (2023) 71–94.

Vidas, Zalasiewicz, and Williams, supra note 4; J.E. Viñuales, ‘The Organisation of the Anthropocene: In Our Hands?’  Brill Research Perspective (2018) 1–81; L. Kotzé, ‘Earth System Law for the Anthropocene: Rethinking Environmental Law Alongside the Earth System Metaphor’, 11 Transnational Legal Theory (2020) 75–104; R.E. Kim, ‘Taming Gaia 2.0: Earth System Law in the Ruptured Anthropocene’, 9 The Anthropocene Review (2022) 411–424.

J. Verschuuren, ‘The Role of Sustainable Development and the Associated Principles of Environmental Law and Governance in the Anthropocene’, in L.J. Kotzé (ed.), Environmental Law and Governance for the Anthropocene (Hart Publishing, 2017) 3–30, at 19.

K. Heller, ‘The Crime of Ecocide in Action’, Opinio Juris , 28 June 2021, available online at http://opiniojuris.org/2021/06/28/the-crime-of-ecocide-in-action/ (visited 21 June 2023); E. Winter, ‘Stop Ecocide International’s Blueprint for Ecocide Is Compromised by Anthropocentrism: A New Architect Must Be Found’, Israel Law Review (2023) 1–35.

J. Dryzek and J. Pickering, The Politics of the Anthropocene (Oxford University Press, 2019), at 34; J.B. Ruhl, ‘Thinking of Environmental Law as a Complex Adaptive System: How to Clean Up the Environment by Making a Mess of Environmental Law’, 34 Houston Law Review (1997) 933–1002, at 947.

L. Mai and E. Boulot, ‘Harnessing the Transformative Potential of Earth System Law: From Theory to Practice’, 7 Earth System Governance (2021) 1–12, at 5.

Kotzé, supra note 10, at 77.

Mai and Boulot, supra note 14, at 7.

M. Kooijman, ‘From Anthropos to Oikos in International Criminal Law: A Critical-Theoretical Exploration of Ecocide as an ‘Ecocentric’ Amendment to the Rome Statute’, 52 Netherlands Yearbook of International Law 2021 (2023) 101–132, at 104; E. Cusato and E. Jones, ‘The ‘Imbroglio’ of Ecocide: A Political Economic Analysis’, 37 Leiden Journal of International Law (2023) 1–20.

Cusato and Jones, ibid. , at 5.

L. Rajamani and J. Peel (eds), The Oxford Handbook of International Environmental Law (2nd edn., Oxford University Press, 2021).

Report of the United Nations Conference on the Human Environment, Stockholm , 5-16 June 1972 , A/CONF.48/14/Rev.1, available online at https://undocs.org/Home/Mobile?FinalSymbol=A%2FCONF.48%2F14%2FRev.1&Language=E&DeviceType=Desktop&LangRequested=False (visited 21 June 2023), at 3.

R. Gordon, ‘Unsustainable Development’, in S. Alam, S. Atapattu, C. Gonzalez and J. Razzaque (eds), International Environmental Law and the Global South (Cambridge University Press, 2015) 50–73, at 61–63.

Report of the United Nations Conference on Environment and Development, Rio de. Janeiro, 3-14 June 1992 , A/CONF.151/26 (Vol. I), 12 August 1992, available online at https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF.151_26_Vol.I_Declaration.pdf (visited 21 June 2023), Principle 4.

F. Biermann, ‘The Future of ‘Environmental’ Policy in the Anthropocene: Time for a Paradigm Shift’, 30 Environmental Politics (2021) 61–80, at 62.

D. Robinson, ‘Ecocide — Puzzles and Possibilities’, 20 Journal of International Criminal Justice ( JICJ ) (2022) 313–347, at 333–334.

IEP, supra note 5, at 10.

Robinson, supra note 25, at 335.

Promise Institute for Human Rights (UCLA) Group of Experts, Proposed Definition of Ecocide , 9 April 2021, available online at https://ecocidelaw.com/wp-content/uploads/2022/02/Proposed-Definition-of-Ecocide-Promise-Group-April-9-2021-final.pdf (visited 21 June 2023), at 6.

M. Gillett, Prosecuting Environmental Harm before the International Criminal Court (Cambridge University Press, 2022), at 348–350.

For a criticism see Winter, supra note 12, at 22–24.

ICC, Statement by H. E. John H. Licht, General Debate of the 18 th Session of the ASP to the Rome Statute of the ICC, 2 nd -7 th December 2019 , available online at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP18/GD.VAN.2.12.pdf (visited 21 June 2023).

Gauger et al., supra note 3.

B. Lay et al., ‘Timely and Necessary: Ecocide Law as Urgent and Emerging’, 28 The Journal Jurisprudence (2015) 431–452, at 437.

L. Kotzé and R. Kim, ‘Exploring the Analytical, Normative and Transformative Dimensions of Earth System Law’, 50 Environmental Policy and Law (2020) 457–470, at 462, emphasis in the original. See also Gordon, supra note 22, at 63.

Lange, supra note 9, at 40. See also Philippopoulos-Mihalopoulos, Towards a Critical Environmental Law , supra note 9.

Lange, supra note 9, at 44–45.

U. Natarajan and K. Khoday, ‘Locating Nature: Making and Unmaking International Law’, in U. Natarajan and J. Dehm (eds), Locating Nature: Making and Unmaking International Law (Cambridge University Press, 2022) 21–44, at 23.

Adelman, Legal Paradigm Shift , supra note 9, at 49.

Cusato and Jones, supra note 17, at 8.

Paris Agreement, United Nations, 2015, available online at https://unfccc.int/sites/default/files/english_paris_agreement.pdf (visited 21 June 2023), Art. 4(3).

Lay et al., supra note 33, at 437.

For a discussion of the integration of international humanitarian law with IEL see J. de Hemptinne and R. van Steenberghe, ‘Symposium, The Protection of the Environment during Warfare: An International Environmental Law Perspective: Foreword’, 20 JICJ (2022) 1119–1122; R. van Steenberghe, ‘The Interplay between International Humanitarian Law and International Environmental Law: Towards a Comprehensive Framework for a Better Protection of the Environment in Armed Conflict’, 20 JICJ (2022) 1123–1154.

C. Voigt, ‘International Environmental Responsibility and Liability’, in L. Rajamani and J. Peel (eds), The Oxford Handbook of International Environmental Law (2nd edn., Oxford University Press, 2021) 1003–1021, at 1004. Exceptions to this trend include the UN Convention on the Law of the Sea and the incorporation of civil liability provisions in some multilateral environmental agreements. Ibid. , at 1004, 1009.

Ibid. , at 1010.

A. Boyle, C. Redgwell and P.W. Birnie,  Birnie, Boyle, and Redgwell's International Law and the Environment (4th edn., Oxford University Press, 2021), at 249.

Gillett, supra note 29, at 38.

Kooijman, supra note 17, at 117–118. See also Cusato and Jones, supra note 17, at 11.

H. Stevenson, Institutionalizing Unsustainability: The Paradox of Global Climate Governance (University of California Press, 2013).

Ibid. , at 2.

Kotzé and Kim, supra note 34, at 462.

See Section 2.

T. Lindgren, ‘Grounding Ecocide, Humanity and International Law’, in F. Mégret, U. Natarajan and V. Chapaux (eds), Routledge Handbook on Anthropocentrism and International Law (Routledge, 2023); Cusato and Jones, supra note 17.

Kotzé, supra note 10, at 77; R.E. Kim and K. Bosselmann, ‘International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements’, 2 Transnational Environmental Law (2013) 285–309.

L. Kotzé and R. Kim, ‘Earth System Law: The Juridical Dimensions of Earth System Governance’, 1 Earth System Governance (2019) 1–12, at 4. See also Adelman, Legal Paradigm Shift , supra note 9.

Viñuales, supra note 10, at 51.

W. Adams, Green Development: Environment and Sustainability in a Developing World (3rd edn., Routledge, 2009), at 94.

Ibid. , at 124–125. See also Adelman, Sustainable Development Goals , supra note 9; Gordon, supra note 22, at 66; Cusato and Jones, supra note 17, at 14–15.

Kotzé and Kim, supra note 54, at 4.

Kotzé and Kim, supra note 34, at 460. See also R. Norgaard, ‘Ecosystem Services: From Eye-Opening Metaphor to Complexity Blinder’, 69 Ecological Economics (2010) 1219–1227, at 1219.

C.G. Gonzalez, ‘Global Justice in the Anthropocene’, in L.J. Kotzé (ed.), Environmental Law and Governance for the Anthropocene (Hart Publishing, 2017) 219–240, at 228.

P. Christoff and R. Eckersley, Globalization and the Environment (Rowman & Littlefield Publishers, Inc., 2013), at 50, emphasis added.

Cusato and Jones, supra note 17, at 15–16.

Verschuuren, supra note 11, at 16. See also Mai and Boulot, supra note 14, at 1.

Dryzek and Pickering, supra note 13, at 2.

Ibid. , at 8. See also Vidas, Zalasiewicz and Williams, supra note 4, at 4.

Dryzek and Pickering, supra note 13, at 4–5, emphasis added.

Kim, supra note 10, at 415.

Viñuales, supra note 10, at 29.

Gonzalez, supra note 60, at 221; Kotzé and Kim, supra note 54, at 3.

Philippopolous-Mihalopoulos, Anthropocene , supra note 9, at 133; Adelman, Legal Paradigm Shift , supra note 9, at 50. Kotsakis and Boukli, Oil Disasters , supra note 9, at 87.

Philippopolous-Mihalopoulos, Anthropocene , supra note 9, at 125.

Adelman, Sustainable Development Goals , supra note 9, at 32.

Philippopolous-Mihalopoulos, Anthropocene , supra note 9, at 130, emphasis added.

Grear, supra note 9, at 85, emphasis omitted. See also Cusato and Jones, supra note 17, at 13–14.

Boukli and Kotsakis, Mineral Extractivism , supra note 9, at 15–16.

Cusato and Jones, supra note 17. Kooijman, supra note 17.

D. Kennedy, Of War and Law (Princeton University Press, 2006), at 143.

Winter, supra note 12, at 13–14.

Cusato and Jones, supra note 17, at 14.

Adams, supra note 56, at 313–317. Gillett, supra note 29, at 168–170.

World Bank, ‘World Bank Approves Additional Funding to Enhance Dam Safety in India’, 1 March 2019, available online at https://www.worldbank.org/en/news/press-release/2019/03/01/world-bank-approves-additional-funding-to-enhance-dam-safety-in-india (visited 21 June 2023).

Heller, supra note 12.

Adams, supra note 56, at 308–310.

Ibid. , at 308–309.

E. Meijaard et al., ‘The Environmental Impacts of Palm Oil in Context’, 6  Nature Plants (2020) 1418–1426, at 1420–22.

See similar observations in Meijaard et al., ibid. , at 1418.

WWF, ‘8 Things to Know about Palm Oil’, https://www.wwf.org.uk/updates/8-things-know-about-palm-oil (visited 21 June 2023).

Meijaard et al., supra note 85, at 1423.

J. and B. White ‘Gendered Experiences of Dispossession: Oil Palm Expansion in a Dayak Hibun Company in West Kalimantan’, 39 Journal of Peasant Studies (2012) 995–1016.

Ibid. , at 1001–1006.

Gillett, supra note 29, at 184.

Kotsakis and Boukli, Oil Disasters , supra note 9, at 81.

Ibid. , at 90.

Ibid. , at 89.

Boukli and Kotsakis, Mineral Extractivism , supra note 9, at 6.

Kotsakis and Boukli, Oil Disasters , supra note 9, at 92–93. Adelman, Legal Paradigm Shift , supra note 9, at 50–51.

M. Mehling, ‘Market Mechanisms’, in L. Rajamani and J. Peel (eds), The Oxford Handbook of International Environmental Law (2nd edn., Oxford University Press, 2021) 920–936, at 922–923.

K. McAfee, ‘The Contradictory Logic of Global Ecosystem Services Markets’, 43 Development and Change (2012), 105–131, at 105.

Mehling, supra note 98, at 928–929.

McAfee, supra note 99.

Ibid. , at 114.

Norgaard, supra note 59, at 1221–1222.

Ibid. , 1221–1222.

M.A. Palmer and S. Filoso, ‘Restoration of Ecosystem Services for Environmental Markets’, 325 Science (2009) 575–576, at 575.

Heller, supra note 12. See also Gillett, supra note 29, at 164.

Stevenson, supra note 48, at 207–208. See also Kotzé and Kim, supra note 34, at 462.

Kim and Kotzé, supra note 54, at 4.

Viñuales, supra note 10.

Vidas, Zalasiewicz, and Williams, supra note 4, at 21.

Kim, supra note 10, at 417.

Dryzek and Pickering, supra note 13, at 52.

Kotzé and Kim, supra note 34, at 466. Kim, supra note 10, at 419.

Dryzek and Pickering, supra note 13, at 34.

Ibid. , pp. 52–56.

Ruhl, supra note 13, at 947.

I would like to thank the anonymous reviewer for highlighting this point.

Julian Webb, ‘Law, Ethics, and Complexity: Complexity Theory & (and) the Normative Reconstruction of Law’, 52 Cleveland State Law Review (2004) 227–242, at 232–234.

J. Brunnée and S. Toope, ‘Interactional International Law and the Practice of Legality’, in E. Adler and V. Pouliot (eds), International Practices (Cambridge University Press, 2011) 108–135, at 111.

B. Van Schaack, ‘Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals’, 97 Georgetown Law Journal (2008) 119–192, at 146147.

Rulh, supra note 13, at 991.

Judgment on the appeal of Mr Ntaganda against the ‘Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9’, Ntaganda (ICC-01/04-02/06-1962), Appeals Chamber, 15 June 2017, § 3.

K. Heller, ‘ICC Appeals Chamber Says A War Crime Does Not Have to Violate IHL’, Opinio Juris , 15 June 2017, available online at http://opiniojuris.org/2017/06/15/icc-appeals-chamber-holds-a-war-crime-does-not-have-to-violate-ihl/ (visited 21 June 2023).

Judgment on the Appeal, Ntaganda , supra note 124, § 65, emphasis added.

Ibid. , § 65.

S. Darcy and J. Powderly (eds), Judicial Creativity at the International Criminal Tribunals (Oxford University Press, 2010).

For a discussion see L. Yanev, ‘A Janus-faced Concept: Nuremberg’s Law on Conspiracy vis-à-vis the Notion of Joint Criminal Enterprise’, 26 Criminal Law Forum (2015) 419–456. Lawyers with civil law background found the idea of imputing liability for crimes on the sole basis of conspiring to commit those crimes disturbing: ibid. , at 435–436.

P. Saland, ‘International Criminal Law Principles’, in R. Lee (ed.), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (Kluwer Law International, 1999) 189–216, at 199.

L.G. Minkova, Responsibility on Trial: Liability Standards in International Criminal Law (Cambridge University Press, 2023), at 180–181.

Those questions have been raised by Kim, supra note 10, 419. See also Mai and Boulot, supra note 14, at 5.

Mai and Boulot, supra note 14, at 5.

M.D. Adler and N. Treich, ‘Prioritarianism and Climate Change’, 62 Environmental and Resource Economics (2015) 279–308, at 280.

T.A. Benjaminsen, ‘Political Ecologies of Environmental Degradation and Marginalization’, in T. Perreault, G. Bridge, and J. McCarthy (eds), The Routledge Handbook of Political Ecology (Routledge, 2015) 354–365, at 356–357; M. Hulme, Why We Disagree about Climate Change (Cambridge University Press, 2009), at 112.

Gillett, supra note 29, at 201–202.

IEP, supra note 5, at 12. For a critique see Gillett, supra note 29, at 348, fn.148.

T. Donaghy, Tar Sands Tanker Superhighway Threatens Pacific Coast Waters , Greenpeace, 26 June 2018, available online at https://www.greenpeace.org/usa/wp-content/uploads/2018/07/227a9d44-tar-sands-web-mech.pdf (visited 21 June 2023), at 9.

See section 4(A).

J. Rosenberg and S. Hallegatte, ‘Poor People on the Front Line: The Impacts of Climate Change on Poverty in 2030’, in S.M.R. Kanbur and H. Shue (eds), Climate Justice: Integrating Economics and Philosophy (Oxford University Press, 2018) 24–42, at 24.

N. Hassoun and A. Herlitz, ‘Climate Change and Inequity: How to Think about Inequities in Different Dimensions’, in S.M.R. Kanbur and H. Shue (eds), Climate Justice: Integrating Economics and Philosophy (Oxford University Press, 2018) 95–112, at 104; Adler and Treich, supra note 135, at 279–308.

Adler and Treich, supra note 135, at 280.

Kooijman, supra note 17, at 122.

Gillett, supra note 29, at 173–174.

S. Caney, ‘Justice and Posterity’, in S.M.R. Kanbur and H. Shue (eds), Climate Justice: Integrating Economics and Philosophy (Oxford University Press, 2018), 157–174, at 158.

Ibid. , at 164–165.

S.M.R. Kanbur and H. Shue, ‘Climate Justice: Integrating Economics and Philosophy’, in Kanbur and Shue (eds), supra note 147, 1–23, at 1.

Reasons of Judge Geoffrey Henderson, Gbagbo and Blé Goudé (ICC-02/11-01/15- 1263-AnxB-Red), Trial Chamber I, 16 July 2019, § 10.

Separate opinion Judge Christine Van den Wyngaert and Judge Howard Morrison, Bemba (ICC-01/05-01/08-3636-Anx2), Appeals Chamber, 8 June 2018, § 75.

Kooijman, supra note 17; Cusato and Jones, supra note 17; Lindgren, supra note 52.

Grear, supra note 9, at 94.

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Critical thinking definition

Critical thinking, as described by Oxford Languages, is the objective analysis and evaluation of an issue in order to form a judgement.

Active and skillful approach, evaluation, assessment, synthesis, and/or evaluation of information obtained from, or made by, observation, knowledge, reflection, acumen or conversation, as a guide to belief and action, requires the critical thinking process, which is why it's often used in education and academics.

Some even may view it as a backbone of modern thought.

However, it's a skill, and skills must be trained and encouraged to be used at its full potential.

People turn up to various approaches in improving their critical thinking, like:

• Developing technical and problem-solving skills
• Engaging in more active listening
• Actively questioning their assumptions and beliefs
• Seeking out more diversity of thought
• Opening up their curiosity in an intellectual way etc.

Is critical thinking useful in writing?

Critical thinking can help in planning your paper and making it more concise, but it's not obvious at first. We carefully pinpointed some the questions you should ask yourself when boosting critical thinking in writing:

• What information should be included?
• Which information resources should the author look to?
• What degree of technical knowledge should the report assume its audience has?
• What is the most effective way to show information?
• How should the report be organized?
• How should it be designed?
• What tone and level of language difficulty should the document have?

Usage of critical thinking comes down not only to the outline of your paper, it also begs the question: How can we use critical thinking solving problems in our writing's topic?

Let's say, you have a Powerpoint on how critical thinking can reduce poverty in the United States. You'll primarily have to define critical thinking for the viewers, as well as use a lot of critical thinking questions and synonyms to get them to be familiar with your methods and start the thinking process behind it.

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To appreciate the benefits of Critical thinking, its worthwhile to ask the psychologists about 'how we think', and then see where Critical thinking actually fits in. 

  two systems of thinking.

Over the decades there has been plenty of research into how we think and make decisions. Daniel Kahneman is a noble prize winning researcher who did a lot of research on the cognitive processes of the brain and how it makes judgments under various conditions. 

Kahneman in his book ‘Thinking fast and Slow’ states that we need to look at our thinking processes as consisting of two distinct and different types of processes. He calls them ‘System 1 thinking’ and System 2 thinking’. 

System 1 and system 2 are not associated with the left or right brains or with creativity or any physical parts of the brain in the human body. But these are names given to two different types of thinking. 

Kahneman gives some examples to illustrate the two types of thinking:  

The Angry woman 

When you look at the picture above, and are asked what is the woman thinking or emotion that she is experiencing, you are most likely to find that your brain has deciphered the emotion to be one of anger - and this understanding that the woman is angry is almost instantaneous. You did not have to concentrate, analyze or mentally compare with past interpretations of the look to arrive at your conclusion that she is angry. 

 Numerical example 

Or lets take a look at another example that Kahneman gives. Take a look at the problem below, and decide whether each of the answers below is correct 

17x24 = ? 

• 120068 ? 

In the first three answers you would have found that you did not need any time to decide that the answers are wrong. But when you came to 568, its quite likely that your brain paused for a moment and considered the answer. Could this be correct? 

And as I have seen in several workshops, most people declare that it is the right answer. The number of digits look right, the number ends in a ‘8’ which the right answer should end in.  

Critical thinking benefits- at a glance

There is a qualitative difference in the way our thinking operates while negating the first three numbers, and while considering and evaluating whether 568 is the right answer. In the first three instances, we did not need to pause to think - we knew the answers were wrong. But in the last instance - we paused, evaluated for short or long, and then delivered a verdict - of right or wrong.  

The brain focused on the problem, put in some concentration and effort in the evaluation. Kahneman calls this deliberate, attention giving type of thinking as System 2 thinking. 

• System 2 thinking requires attention and effort, and the activity suffers if attention is disrupted. System 2 thinking is also associated with the feeling of agency. When we think of ourselves as a person, it is system 2 thinking. 
• System 1 operates automatically and quickly with little or no effort and no sense of voluntary control 
• system 2 allocates attention to the effortful mental activities that demand it including complex computations 
• The operations of system two are often associated with the subjective experience of agency choice and concentration 

When we think of others we identify with system 2 

• let's take a look at some of the system one activities 
• detect that one object is more distant than another 
• Orient to the source of a certain sound 
• Complete the phrase bread an 
• detect hostility in a voice 
• answer to 2 + 2 is equal to 
• Read words on large billboards 
• Drive a car on an empty Rd 
• Find a strong move in chess especially if you're a chess master. those who might not be experts in chess uh they would not necessarily have an operation of system one thinking  they but they would need system 2 thinking 

The highly diverse operations of System 2 have one feature in common: they require attention and are disrupted when attention is drawn away. Here are some examples:    

•  Check the validity of a complex logical argument. 
•  Budgeting for building a house 
•  Developing a marketing strategy 
•  Fill out a Tax return 
•  Brace for the starter gun in a race.  
• Focus on the voice of a particular person in a crowded and noisy room. 

Critical thinking is a system 2 activity.  It is a consciously directed activity and needs attention and effort.  If attention is taken away from the activity on hand the activity gets disrupted.

....And now for the benefits of Critical thinking skills

Enhanced problem-solving: Critical thinking helps individuals break down complex problems into manageable parts, identify underlying issues, and generate effective solutions. It promotes a systematic approach to problem-solving, reducing reliance on assumptions or biases.

Improved decision-making: Critical thinking involves evaluating evidence, considering multiple perspectives, and weighing the pros and cons of different options. This leads to more informed and rational decision-making, minimizing the influence of emotions or personal biases.

Increased creativity: Critical thinking encourages individuals to think outside the box, challenge established norms, and explore alternative viewpoints. It fosters creativity and innovation by promoting open-mindedness and the ability to generate unique ideas.

Effective communication: Critical thinking helps individuals express their thoughts and ideas clearly, logically, and persuasively. It enables them to analyze and construct arguments, recognize fallacies, and communicate their viewpoints with evidence-based reasoning.

Stronger analytical skills: Critical thinking enhances analytical skills by training individuals to gather relevant information, evaluate its credibility and validity, and draw logical conclusions. It enables them to identify patterns, make connections, and think critically about the implications of data.

Increased self-awareness: Critical thinking involves self-reflection and the examination of one's own beliefs, biases, and assumptions. It allows individuals to become more aware of their cognitive processes, biases, and areas for improvement, fostering personal growth and intellectual humility.

Effective problem prevention: Critical thinking is not only about solving existing problems but also about preventing them. By critically evaluating situations and potential outcomes, individuals can anticipate problems, identify potential risks, and take proactive measures to avoid or mitigate them.

Better academic and professional performance: Critical thinking is highly valued in academic and professional settings. It equips individuals with the skills necessary for research, analysis, and argumentation, leading to improved academic performance, better job prospects, and career advancement.

Enhanced empathy and understanding: Critical thinking involves considering diverse perspectives and evaluating evidence objectively. This fosters empathy, tolerance, and a willingness to understand viewpoints different from one's own. It promotes respectful dialogue and effective collaboration with others.

Lifelong learning: Critical thinking is essential for continuous learning and intellectual growth. It encourages individuals to question assumptions, seek out reliable information, and remain open to new ideas and knowledge. It empowers individuals to become lifelong learners, adapting to new challenges and opportunities.

Critical thinking training in Sales

Sales leaders trained in critical thinking would appreciate Aristotle's triangle of persuasion, and easily apply the relevant modes of convincing required for different sales situations. They would also realize that every sales proposal is an inductive argument which answers the questions' why this solution' and 'why my company'. Structuring logically strong proposals is a breeze once you understand inductive reasoning.  Read about how critical thinking applies in B2B sales.

Critical thinking training for HR

HR professionals who are aware of fallacies and tactics such as 'Poisoning the well', 'hasty generalization' and selection bias will find it easier to understand and deal with employees and get better at evaluating people and situations. An understanding of various fallacies and cognitive biases would mitigate the risks of bad decisions due to faulty reasoning. They would also understand that 'Resume's are an exercise in Inductive arguments to prove why a candidate is the best fit for the job, and this would help in better shortlisting, interviewing and selection of candidates.

Critical thinking training for Analysts and Consultants

Business analysts, Consultants would find an understanding of Causal reasoning extremely useful, and an appreciation of common errors would result in better diagnosis of root causes of problems, and also provide a good framework for understanding whether the recommended solution would indeed address the problem identified. Regular application of the Critical thinking framework to problem solving and decision making ensures that the issue is examined from all relevant angles and perspectives before a solution is accepted.                                 

Critical thinking training for Managers

Managers are called to make decisions and solve problems and devise strategies on an ongoing basis. While domain knowledge and experience have a great role to play in being successful, knowledge of fallacies and cognitive biases will ensure that they do not make errors in reasoning, and also whet their solutions for eliminating any cognitive biases they may have. The Critical thinking framework will assist in systematic analysis and problem solving for addressing complex issues

Why Critical thinking is important for students

A 2013 Survey of Employers by “The Association Of American Colleges And Universities” revealed that : Nearly all employers surveyed (93 percent) say that “a demonstrated capacity to think critically, communicate clearly, and solve complex problems is more important than [a candidate’s] undergraduate major.”  More than 75 percent of those surveyed say they want more emphasis (In teaching) on five key areas including: critical thinking, complex problem solving, written and oral communication, and applied knowledge in real world settings.

Critical thinking in academics

A knowledge of inductive reasoning and causal reasoning helps students break down any theory or subject into logical segments, and they are also able to build connections between what they learn and their existing knowledge. This makes them better students who develop a deeper understanding of the subject, and by virtue of reasoning while learning, they tend to retain their learning for longer periods of time.  All writing tasks are an exercise in persuasion - presenting arguments and supporting them (excepting story writing and pure narrative writing). Developing, evaluating and presenting arguments are the skills developed while doing a course in Critical thinking. Combined with the knowledge of writing argumentative essays, and applying critical thinking frameworks, students are well equipped to deal with a variety of analyses and writing tasks.  Knowledge of Causal reasoning helps research students develop sharp hypotheses and set up experiments or surveys to test their hypothesis. Causal reasoning is at the root of all research.  Critical thinking skills also makes students better at discussions and debates. Having learnt to apply logic, and veer clear of fallacies and cognitive biases, students with leadership qualities find themselves equipped to productively lead and manage teams in various projects.

Critical thinking and Resume's

Aristotle had said there are three ways of persuading human beings: With logic, credibility or emotions. A candidate's Resume is a written document that attempts to persuade a potential employer of 'Why he is the best candidate for the job'. The tools of persuasion employed in a Resume are logic and credibility. As a matter of fact, it consists of a chain of inductive arguments reinforcing each other, and credibility established with certifications, awards and recommendations. A student of Critical thinking would find it very easy to structure and write a Resume to persuasively present their credentials and suitability for the job.

Critical thinking in Group discussions and Personal interviews

In group discussions,  participants are presenting arguments for or against a topic or just evaluating a situation. At the heart of any discussion is the ability to reason logically and conduct a 360 degree examination of any issue to ensure that all the dimensions of the issue are explored and analyzed. Those who do not understand logical reasoning do not have the benefit of approaching or arguing any topic in a logical and progressive manner. Critical thinking teaches students how to define and analyze problems, while avoiding fallacies and cognitive biases. They develop the ability to make very strong and persuasive arguments based on logic and evidence. They are also good at finding holes and gaps and unwarranted assumptions in others arguments.  In personal interviews , you will find trained students answering pretty much to the question, and clarifying questions where required. Their answers are logical and their training guides them in strengthening their arguments with evidence or examples..

All applicants to foreign universities are required to submit a SOP (Statement of Purpose) along with their applications and GRE/GMAT scores. Many students have difficulty with writing a SOP for two reasons: (1) they are not clear what needs to go into the SOP and (2) how to actually structure and write the SOP. For a student who has studies logical reasoning and inductive arguments in particular, writing a persuasive essay is an easy task. Further, those who learn how to structure and write an argumentative essay will never have a problem with any writing task.

Critical thinking in GRE & GMAT  

Critical reasoning questions in gre and gmat.

GRE and GMAT have complete sections in their tests dedicated to test the logical reasoning capabilities of applicants. They are called 'Critical reasoning' tests and are designed to test the ability of test takers to analyze arguments logically. The questions revolve around : Strengthening or weakening arguments, revealing unstated assumptions or assumptions which if proved wrong or right could make a significant difference to the strength of the argument. Some questions relate to an understanding of the arguments presented. Most test takers answer these questions using intuition, experience from past tests or guess-work. Very few if any actually have learnt the fundamentals of logical reasoning, and as a result, answers generally are a 'hit or miss'. On the contrary, if test takers have studied and understood logical reasoning and fallacies, they would be able to take a knowledgable and structured approach to these questions which minimizes the chances of making any errors. The current approach is akin to asking someone to read a balance sheet without understanding accounting.  Training in Critical thinking helps students answer the Critical reasoning questions with the confidence that comes with knowledge on how to scientifically evaluate and answer these questions.