The disappearing Amazon rainforest
Marcin Gerwin: You propose introducing a new international law of ecocide as an amendment to the Rome Statute. Ecocide is defined as “an extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.” Why do we need the new law to protect the planet? Aren’t current regulations enough?
Polly Higgins: I came to the recognition as a lawyer, and I was dealing with corporate law, that existing regulations just didn’t work. You just have to look at the Amazon to see that we’ve got ever increasing damage and destruction happening there. And how was it that we have normalized damage and destruction to such a huge level, and that companies are making lots of money off it? It was quite clear to me that existing laws were not fit for purpose. We have loads of environmental laws around the world, but a lot of them are premised on fines, which are “catch me if you can laws”. It means that when the community that is most adversely impacted takes some legal action it is often too little and too late. That didn’t make sense to me.
Also we create permits to pollute. Permit allocations create what’s known as Jevons paradox. The idea of permits is to bring the pollution down, but you end up with so many permits everywhere that in fact the pollution escalates. The Jevons paradox means that when you limit something it actually increases, it doesn’t stop it at source. So the two ways that we approach environmental issues are fundamentally flawed. We need to fundamentally examine how do we create a legal duty of care for the Earth? And what it would mean at the very top international level, because doing a little bit of tweaking here, a little bit of tweaking there is never going to cut it. We need something that is an umbrella piece of legislation that puts a number one duty of care that prioritizes people and planet. Out of that understanding I got to the point of recognizing that we need to create an international law of ecocide. And looking around to see what other lawyers were creating I discovered that nobody was doing it. Then I thought “OK… it may be me” (laughter).
MG: In what way is the new law different than current regulations?
PH: The law of ecocide goes into the heart of the matter. It starts with the premise of first do no harm. It’s like turning the tap off, upstream. At the moment it is the norm for investment to flow toward making profit out of mass damage and destruction. What the law of ecocide is doing is turning off that tap and saying the flow of money can no longer go to dangerous industrial activities. It means that by law the governments will not be able to support those sorts of activities and that by law they would have to prioritize the green economy and innovation in the other direction. So it’s not about closing down the companies.
The law of ecocide is a crime against nature, but it also is a crime against humanity, because when we commit ecocide and cause much damage and destruction we fundamentally compromise our ability to live peacefully.
MG: Could it help to stop climate change?
PH: If you define climate change as the increase in greenhouse gases then this is legislation that will have direct impact. What it will do is actually stop dangerous industrial activity of businesses that are considered the carbon majors – the unconventional tar extraction is the most obvious one of all. It creates enormous amounts of greenhouse gases at source as well as when it is used in cars, or what have you. If the company chooses to continue it will have to be held accountable in the court of law. And that practice will not continue much longer under the law of ecocide. It fundamentally shifts the playing field very fast in a way where the Kyoto Protocol has failed. And this is about where political will has not been able to make the change very fast. But the law of ecocide can.
MG: As I understand it, the managers would be personally responsible for causing environmental damage?
PH: It’s actually higher than managers, it’s at the very top. It’s known as superior responsibility. It’s when the CEOs, the directors, the heads of states, the ministers, who sign off a project that can have huge adverse consequences, they all become accountable in the court of law. But it also helps, for instance, at ministerial level, where a lot of corporate lobbying can be brought to bear, ministers could say then: “Look, there’s nothing I can do here, it’s an international law. I cannot give you subsidies for what you’re doing because it’s now illegal, unless you change your practices. I can’t be complacent to that because I can be held to account in the court of law”. It helps ministers in their decision making.
MG: How would it work in practice? Who could sue the prime minister, for example?
PH: Because it is an international law, the International Criminal Court (“the ICC”) would be empowered to take action. However, the ICC is a court of last resort. The first starting point is in the country, which can take action independently. The ICC steps in when the country is either unwilling or unable to take action. There is a lot of discourse now about setting up an International Court for Environment. This could have a valid rule in that as well.
MG: You’re trying now to introduce the law of ecocide in Europe through the citizens initiative.
PH: A group of citizens approached me and suggested setting up a European citizens initiative. This is a new thing in Europe where citizens get to have a say in the laws they want to see put in place in Europe. All we need to do is to get a support of a million citizens within a year, in fact by 21 January 2014. If the European Commission agrees, it will then be tabled — it will be put on the table in European Parliament very fast. It would have huge implications not just in the EU. If you have a European-registered company that is committing ecocide in a non-European country they can be prosecuted in Europe. If you have a director or CEO of a company that is an EU national they can be prosecuted in Europe even if he or she works for a company that is out of Europe. It would apply also to using products such as fossil fuels that have come from countries outside Europe, such as Alberta in Canada. Using it is an ecocide. This is about Europe giving a huge lead, demonstrating a block support for an international law of ecocide. So, the power lies in our fingers to get on-line at endecocide.eu and just take a minute or two to put our vote in there. And more, get your friends on-board as well, spread it about. Because it’s up to us! It’s our choice where it goes now.