Ecocide update with Polly Higgins

Once in a lifetime a truly game-changing event reshapes global society. Think back to 1833 when the British Parliament finally bowed to public pressure and the Slavery Abolition Act was passed. Now in our lifetime Polly Higgins is campaigning tirelessly to do for Earth Rights what the abolitionists did for Human Rights. And the goal is in sight.

I spoke to Polly Higgins this week for an update.

Brian: We’re always fascinated to know what motivates people; what got you started on a lifetime of activism?
Polly: In my student days I met the Austrian artist and ecologist Hundertwasser. He was a big part of my life then. I went to Austria specifically to seek him out for an interview for my Masters thesis. He was an ecological thinker so much ahead of his time. He talked about things such as: trees have rights; nature has no straight lines, so neither should our architecture.

Brian: But how do you think he would view the idea of a global law for the Earth? After all he was even opposed to the European Union, let alone global legal frameworks.
Polly: That’s true. But he nevertheless had an expansive view of nature and the need to protect the earth. His main concern there was with the tendency towards a homogenised culture; he was eager to celebrate the higher innate wisdom found in indigenous culture.

Watch Polly Higgins - TEDx Exeter

Watch Polly Higgins – TEDx Exeter

Brian: Ten years ago you were a regular lawyer appearing in the British court system, but that’s all changed. Why is that?
Polly: In 2005 I was a barrister in the UK courts representing a man who had suffered a serious workplace injury. There was a moment of silence while we were waiting for the judges, and I looked out the window and thought “the earth has been badly injured and harmed too, and something needs to be done about that”. My next thought actually changed my life, “the earth needs a good lawyer too”. When I looked around for the tools that I could use to defend the earth in court, I realised those tools didn’t actually exist. But what if the earth had rights like we as humans have rights? International laws that criminalise genocide are now accepted as a valuable tool. Why couldn’t we also criminalise ecocide?

Brian: Are there any existing laws against ecocide?
Polly: Vietnam suffered very badly with environmental devastation during the war years, so they introduced ecocide into their domestic law in 1990. The USSR had also incorporated ecocide provisions, so following the collapse of the USSR many of the newly independent nations maintained the provisions against ecocide. But ecological destruction crosses national boundaries, and is often caused by transnational corporations, so an international legal framework is needed.

Brian: During your research you found that the United Nations had been considering introducing a crime against nature for decades. What went wrong?
Polly: In the leadup to the adoption of the Rome Statute which led to the establishment of the International Criminal Court, there were to be five core international crimes: genocide, crimes against humanity, war crimes, crimes of aggression and ecocide. But last-minute lobbying – particularly by the US, UK, Netherlands and France – saw ecocide dropped from the Statute.

Brian: So what hope is there of ecocide being reintroduced?
Polly: The Rome Statute can be reviewed in 2015, so right now is an important opportunity for the campaign to have the Statute amended. So far 122 nations – including Australia – are signatories to the Rome Statute. All it would take now to move the proposal forward is for one head of state to sponsor tabling of the draft legislation. There could then be a five year transitional period and the law could be fully operational by 2020.

Brian: Critics of the ecocide campaign have argued that in the case of the greatest environmental challenge that we face – climate change – there is no single perpetrator to be readily identified. Wouldn’t we all be criminalised in that case?
Polly: That’s the beauty of the ecocide provisions. The law doesn’t have to accept the theory of human-induced climate change. Instead it looks at it holistically. Climate change is a symptom of damage to our ecosystems. The important thing is to put in place criminal law that leads to the abatement of dangerous industrial activity. And that’s where the ecocide provision is a game-changer. Prosecution for environmental damage under current national environmental law simply results in a fine, and corporations build that into their budgets. But with ecocide as a law enforced by the International Criminal Court, that would all be vastly different. The principle is known as “superior responsibility” – those who are at the top who make decisions are held to account in a criminal court of law.  That includes corporate CEOs, heads of state, regional premiers and heads of financial institutions.

Brian: You see this as being a game-changer, and that there would be a dramatic improvement in environmental stewardship. But corporations have huge teams of fancy lawyers too. Are you confident that cases brought to court could be won? Or are you assuming that the deterrent effect alone would be sufficient?
Polly: What is crucial here is that there is a test that has to be met – a test that can be examined in court for prosecution purposes. This is a crucial difference between civil and criminal law – it’s not a matter of fancy lawyers, it’s a matter of evidence being brought. It’s far harder to deny ecocide in the face of data, visual evidence and research that demonstrates an ecocide than, say, a crime of theft.

Brian: Some people see you as anti-development.
Polly: That’s not at all the case. My goal is simply to provide a legal framework that enables corporate CEOs to become part of the team that protects our ecosystems. Currently the over-riding legal requirement for corporations is to maximise profits for shareholders. There comes a point when we say ‘this must stop’ – enough tipping points have been reached. Destroying the earth doesn’t work for humans, nature or corporations.

Brian: Are any retrospective provisions included in the draft law?
Polly: No – retrospectivity is not just. What is important is to give space for companies to turn around and be given the opportunity to have all the assistance they require to enable them to do so. That is why I propose a five year transition period.

Brian: So what’s to be done about people who are already suffering the effects of previous ecocide?
Polly: There is a second type of ecocide defined in my proposed amendment that is equally important and very powerful – imputing a legal duty of care for naturally occurring ecocide. Island nations and countries like Bangladesh are being severely threatened by rising sea levels and intensifying storms. But when they appeal to the international community for help, they can be more or less ignored: “it’s not our responsibility”. But the ecocide provision create a legal duty of care for the international community to give assistance.

Brian: Is there something people can do to help?
Polly: Yes, for sure. Please do gift your time, energy and/or some funding! Due to my commitments seeding the law of Ecocide and speaking all over the world I invite in anyone who can help in whatever way they can. We have a great What you can do page up on the eradicatingecocide.com site and you can fund me by becoming a Heart to Heart Funder.  You can find out more at eradicatingecocide.com.

Brian: Thank you Polly. Our editor Dinyar, who interviewed you for the New Internationalist magazine in 2010, describes you as “the most indefatigable campaigner” and for that we’re eternally grateful.

 

Polly Higgins is visiting Australia in March 2014 and will be speaking at:

4 thoughts on “Ecocide update with Polly Higgins

  1. I wonder how the following problems will be resolved.
    One is that ecocide is arguably more often a consequence of inaction, rather than of action. But which of innumerable inactions precisely, and by which of innumerable culpably careless persons or corporations, is the demonstrable cause of (let’s say) rising sea levels?
    This relates to other misgivings. Even where a positively demonstrable action iny an identifiable felon s allegedly responsible for an item of ecocide, on what grounds shall a particular consequence of this action (such as the flooding of Bangladesh) be selected as a ground of litigation from any other particular consequence of the same action, all of which are equally objectionable?
    Perhaps no answer is needed to this. Mass murderers may no doubt be successfully prosecuted for the death of any one of their many victims. More pressing is the question of the particularity of the perpetrator. On what grounds shall polluter A be summoned to answer in court, rather than polluter B? The response that either of them will serve the interests of the litigant equally well introduces issues of partiality that will surely be unwelcome.

  2. Some responses from Polly:

    Yes, ecocide legislation is also drafted to address the aspect of neglect (failure to take action) – see Ecocide Act: http://eradicatingecocide.com/overview/ecocide-act/

    Re naturally occurring Ecocide (such as floods, rising sea-levels) – this is about also creating a legal duty of care to give assistance, and where fail to do so, legal action can be taken – eg nations that refuse to help sinking states. This is fully expanded upon in Chapters 5 & 6 of my first book, Eradicating Ecocide. See in particular about how the UN Trusteeship Council can be reopened.

    Re questions of who to prosecute – this is fairly straightforward. Firstly it is a decision made by the state prosecutor by applying the principle of superior responsibility (eg prosecute the CEO, Directors, Minister of state who signed off the contract that caused the significant harm or failed to take action to prevent the significant harm, and the top investors. We road-tested this in the UK Supreme Court – you can read and watch it here: http://eradicatingecocide.com/overview/mock-trial/

  3. Pingback: Ecocide update with Polly Higgins | Ecocide Alert

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