BY NORA MCDEVITT JULY 2, 2013 Follow Nora McDevitt on Twitter
Law against ecocide would enable governments to take action backed by legislation instead of nice words: Polly Higgins
Polly Higgins is an international environmental attorney, award-winning author, and a long time advocate for the earth’s rights. Higgins and I met in 2009 on the United Nations Climate Express train on our way to Copenhagen for COP15. At the time, she was campaigning for a Declaration of Planetary Rights announced by the Bolivian delegation at the Conference of the Parties and I was shooting a documentary. At the conference, the idea of setting legal boundaries to halt ecocide, or the destruction of the planet, began to percolate. The next year, in March 2010, Higgins proposed to the United Nations that ecocide be declared the Fifth “Crime Against Peace.” Drawing comparisons between slavery, genocide and the destruction of the planet, Higgins emphasizes that civilization is on the cusp of a massive paradigm shift that parallels the abolition of slavery. I spoke with Higgins recently about the principles behind the proposed law and how it could change the trajectory of human history and our environment. An excerpt from our conversation.
Are environmental lawyers having a more difficult time prosecuting crimes, and if so, what are the biggest frustrations confronting environmental lawyers at this point in time?
Higgins: The biggest frustration confronting environmental lawyers is that they are stuck in a system that doesn’t work. The existing laws protect the polluter rather than the planet. Our laws are playing catch up with the wisdom and the knowledge that we are actually destroying the earth more and more. There is a huge disconnect between what’s in place, and what’s needed. This gap is where a law of ecocide really comes into its own. It creates the bridge to take us over to the space that we, as environmental lawyers, want to get over to, which is starting from the fundamental premise of first do no harm.
What does the premise “do no harm” mean? How would a law against ecocide impact current international environmental law?
It would radically reframe how we approach environmental destruction. A law against ecocide stems from a fundamentally different point of view than current law and regulations. It is a deontological [meaning: the study of the nature of duty] point of view. Now a deontological perspective starts from the premise that we have a duty of care to the earth. We have an obligation, and from that idea flows a golden rule, a sacred rule, which is where this principle of do no harm comes into being. We have a legal duty to care for the earth. Within existing environmental law, we haven’t established that duty of care. It doesn’t exist. This law is really about shifting our vision and our understanding away from a very silo, narrow view.
We look at issues on a single thread of direct cause and effect. We fail to examine the impact of our actions in their entirety. For example we say, wow, we need more heat or we need more energy so let’s cut down more forests and burn more trees because it allows us to then go in and extract more fossil fuels. If you examine these actions through the lens of “this is what is good for us now” then it is okay because there is an immediate benefit, but if you look at it from a wider context of how these actions impact us as a whole or over time, you start to see things from a different perspective.
So a deontological perspective comes from a very different place. It is a fundamental turning around from where we are now and saying, okay, let’s start from a completely different premise here. It’s saying let’s start from the first duty that we have, which is to do no harm. Where does that take us then? If it’s really “do no harm,” then we have to start from the premise of saying we criminalize mass damage and destruction to the earth. We draw a line in the sand, and say we’re not going to do that anymore.
You’re alluding to the idea of system’s theory. In terms of industry best practices and scales of economies being completely transformed, the law of ecocide marks a fundamental paradigm shift on par with a post-industrial age. How does this idea work within the framework of nature and law?
This is really about living by the laws of nature. System’s theory is really what nature does. It’s about holistic integration where biodiversity can really flourish. When you start to take a wide view, you begin to recognize the interconnectedness and the interdependency of all of life. It no longer makes sense to destroy vast tracks of territory so some community elsewhere can benefit. You begin to see that kind of system just doesn’t add up because the more you do it, the more problems you create.
Instead, if we start using systems that have a benign impact or actually have a positive impact then you are engaging with how we actually become part of the system rather than just taking from a system. We become far more integrated. We are part of the whole. The shift away from a human-centric way of thinking to a far more ecological way of thinking is essential.
How does this idea of ecocide apply to the concept of the Anthropocene age?
What’s so interesting is that we now have the knowledge. The writing is on the wall. In fact, the reason why we have planetary negotiations is because we recognize that humanity is contributing, in a major way, to the destruction of the earth. So there is a kind of wake up call aspect here, where the law is very often playing catch up with civilization.
It is also about a fundamental shift in understanding as well as a shift in our consciousness. It’s a kind of wake up call that is calling upon us to take care of the earth, and of course, it has legal implications in the form of a legal duty of care. We have a duty of care. Life is not just about: we take and we take and the ‘what’s in it for me’ mentality. But in fact we [have to] expand our concern from the here, the me, and the now, to one that is relational not just to myself and other human beings, but also to my relationship to the earth itself.
I begin to now ask what can I do for the earth? I put myself in a trustee, stewardship position, rather than ownership position, which has largely predominated, especially in the last 200 years, since the industrial revolution. Its been very much owner dictated. And now it’s very much about moving away from that paradigm, that way of thinking, being and doing and the laws that we have around that. A lot of our laws no longer serve living life itself.
How did the law of ecocide and fifth crime against peace come into existence?
Seven or eight years ago, I asked myself a question out of a fundamental discontent as a lawyer. After having represented so many clients in court for years as a corporate lawyer, I recognized that it wasn’t just my clients that were being harmed, that in fact it was the earth itself that was being harmed. And it gave rise to a very important question in me, and that was, how do you create a duty of care for the earth? It doesn’t exist in law, and so how do you go about creating that idea in a legal practice?
We do have a duty of care for humanity. And if we look at our duty of care for humans at the very highest level what we have at the very core of this premise is the right to life. It is our most important right. In fact without that right no other human rights can exist. And on the other side of the coin of human rights are the duties and obligations that they give rise to. That’s governed by the recognition of crimes such as murder or homicide or genocide. These crimes create a legal duty of care so it is incumbent upon you to not to murder another human being.
It seemed to me that, in fact, we were failing to recognize the earth’s fundamental right to life as the most important one of all. Here we are destroying the earth at an enormous rate that is increasing everywhere and every day during peacetime, never mind wartime. If you recognize that the earth has a right to life then you have to create a kind of international crime of peacetime that protects this fundamental right.
In your book, Eradicating Ecocide: Laws and Governance to Prevent the Destruction of Our Planet, you drew the comparison between the movement to end slavery, apartheid, and ecocide. Can you expand on this analogy?
When I was researching the international law of ecocide and how it could work, I looked back in history to see if we have ever done this before. If so then what were the lessons I could learn from history? I looked back to the time of William Wilberforce. He took up the mantle for the abolition of slavery here in Britain and what he did spread these huge enormous ripples across the world that created the abolition movement. This was a man who stood up and said slavery, in and of itself, is wrong. He took the deontological view. He said we carry a sacred duty, a sacred trust to treat humanity humanely, and not as a commodity as something that can be bought and sold and used and abused. He was very much a champion and leader of the abolitionist cause. The laws abolishing slavery were passed just two days before he died. He died a happy man. And those laws created a ripple right across the world leading eventually to the Universal Declaration of Human Rights, and not just white man’s rights. Now, you could argue that we have still have forms of discrimination but we don’t have Africans in chains walking down the streets.
This idea of a law against ecocide is really about something that could fundamentally change civilization as a whole. And of course, when the abolition of slavery happened, civilization shifted very fast. It went from being the norm to have slaves to being utterly unacceptable within a period of less than seven years.
I believe that ecocide as a crime has the same power within it to fundamentally change the history of civilization. It could change the current trajectory of mass destruction.
This is really about providing a safe space for leaders to step into by creating mandatory laws. This law gives business the fundamental international framework, which enables the green economy to take off in a very big way. It also enables and empowers businesses to be subsidized for innovation in this sustainable direction. It will also move research centers and universities to prioritize, by law, innovation in this direction.
Ultimately, this situation is about finance. It is about creating a new proposition so that businesses can move from being a problem to being a solution and giving them the necessary support and assistance to make those changes in a way that’s economically viable. I’m actually far more interested in that than these international conferences. This creates a level playing field across the world so that all businesses can come to the table as equals. It enables governments to take action that is backed by legislation instead of nice words.
You mentioned that the target date for this law to be in effect is 2020. Why have you chosen 2020 as your target date?
What we are looking for is just an amendment to the Rome Statute. It’s not a treaty. It’s not a constitution. It’s just an amendment to the Rome Statute, which sets up the existing crimes against peace and genocide. So all I am asking for is an amendment to that document. Now that is subject to a review and that review should be coming up in 2014 beginning of 2015. There is absolutely no reason why this amendment should not be on the table and for countries to be able to vote for it. It only takes 81 votes for this to become an international law. Eighty-one people in the world have the power to change the course of civilization. And what I propose is that this takes place in 2014-2015 and that we allow a five year transition period for companies to make the shift to become compliant with the new law and we would do that through international legislation.
Here in Europe we’ve now had fast track open up for us to bring any new legislative directive that applies across Europe. [An ecocide directive] is being called for through a fast tracked system called European Citizens’ Initiative (ECI). All we need to do is raise a million votes from seven different [EU] countries by the end of January 2014 and it will be tabled in Europe for these countries to come on board to support a law of ecocide. This legislation can affect any company that is registered in Europe that is committing an ecocide act. The implications are far reaching. It also governs products coming into Europe that arise out of ecocide. So it has huge implications, any products grown using pesticides such as roundup, for instance, can be outlawed. The initiative is being led by an independent group of citizens. You can find out more online at www.endecocide.eu.
What is the significance of this movement?
This legislation creates a pathway forward. A law of ecocide addresses the source of the problem instead of the symptom and cuts to the core, which the UNCCC [United Nations Climate Change Convention] has not been able to address thus far. It provides a real framework for a solution on an international level.