Polly Higgins
“Eradicating Ecocide highlights the need for enforceable, legally binding mechanisms in national and international law to hold to account perpetrators of long term severe damage to the environment. At this critical juncture in history it is vital that we set global standards of accountability for corporations, in order to put an end to the culture of impunity and double standards that pervade the international legal system. Polly Higgins illustrates how this can be achieved in her invaluable new book.”
BIANCA JAGGER
Founder and Chair of Bianca Jagger Human Rights Foundation, advocate for Crimes Against Present and Future Generations
—————————————————————————————————
About the book
The author, a barrister and international environmental lawyer, advocates a radical approach to preventing the destruction of our planet. Higgins points out that existing laws effectively confer a privilege on property owners such that their rights take precedence over environmental concerns, and argues for a change in international law to ensure that the enjoyment of those rights is subject to reciprocal responsibilities, duties and obligations towards future generations and our habitat.
Too long, she argues, we have relied on the ‘compromise laws’ and in-adequate voluntary codes favoured by companies to protect their ‘silent right’ to continue with industrial practices harmful to both human life and the wider environment.
Taking an example from England, the home of the Industrial Revolution and early attempts to control destructive practices by legislation, she describes how the environment was polluted by the use of coal, the 19th century equivalent of 20th century oil as the chief source of energy. When it became apparent that the ill health of the inhabitants was caused by the smoke belching out of factory chimneys, ‘compromise legislation’ was introduced to require factories to build higher chimneys so that the pollution did not fall on those living nearby. The fact that the pollution continued to pollute other parts of the country - and in due course other countries - was ignored. Locally the problem had been ‘solved’.
The modern equivalent, carbon trading, is similarly ‘compromise legislation’ which does not stop the damage and destruction to people and planet at source; instead responsibility is neatly sidestepped. To put an end to this practice, Higgins advocates a new crime, Ecocide, to prevent the ‘damage, destruction to or loss of ecosystems.’ There are already four international Crimes Against Peace. They are: Genocide, Crimes Against Humanity, War Crimes, and Crimes of Aggression.
There is a missing 5th Crime Against Peace: that crime is Ecocide.
—————————————————————————————————
Laws and Governance to Prevent the Destruction of our Planet
£17.95
Shepheard-Walwyn
September 2010
www.shepheard-walwyn.co.uk www.ethicaleconomics.org.uk
Contact
Chapter Excerpt
Chapter 5
ECOCIDE: THE 5TH CRIME AGAINST PEACE
There are certain principles of universal validity and application that apply to civilization as a whole. They are the principles that underpin the prohibition of certain behaviour, for example apartheid and genocide. Such abuses arose out of value systems based on a lack of regard for fellow humanity and are now universally outlawed. The rendering of such action as illegal is premised on the advancement of a higher morality that operates without caveat of qualification, a morality based on the sacredness of human life. In a world aspiring to sacredness of life, it is still necessary to identify the crimes to prevent those who fail to live by similar values. But what of the well-being of all life – not just that of humanity – but of all who inhabit a territory over which one has certain responsibilities?
It was the humanitarian crisis of World War II which prompted the creation of the United Nations Organisation whose stated aims are to facilitate cooperation in international law, international security, economic development, social progress, human rights, and the achieving of world peace. The Charter of the United Nations (UN Charter) declared in 1945:
We the peoples of the United Nations, determined to save succeeding generations from the scourge of war, to promote social progress and better standards of life in greater freedom.
In advancement of peace, the term genocide was soon given international legal recognition to describe the enormous deliberate destruction of human life, such as the holocaust of World War II. Trials were held in Nuremberg to prosecute perpetrators. However, it took over 50 years for the creation of the International Criminal Court (ICC) to provide a permanent international enforcement tribunal, as set down by the provisions in the Rome Statute and ratified in 2002. Jurisdiction is limited to prosecution of individuals of the four ‘most serious crimes of concern to the international community as a whole’, more commonly known as the four Crimes Against Peace. They are: Genocide, Crimes Against Humanity, War Crimes, and Crimes of Aggression. 4 Now another type of international crime against peace has arisen: that crime is Ecocide.
The Crime of Ecocide
The neologism ecocide is already in use to a limited extent, denoting large-scale destruction, in whole or in part, of ecosystems within a given territory. Ecocide is in essence the very antithesis of life. It can be the outcome of external factors, of a force majeure or an ‘act of God’ such as flooding or an earthquake. It can also be the result of human intervention. Economic activity, particularly when connected to natural resources, can be a driver of conflict. By its very nature, ecocide leads to resource depletion, and where there is escalation of resource depletion, war comes chasing close behind. The capacity of ecocide to be trans-boundary and multi-jurisdictional necessitates legislation of international scope. Where such destruction arises out of the actions of mankind, ecocide can be regarded as a crime against peace, against the peace of all those who reside therein. In the event that ecocide is left to flourish, the 21st century will become a century of ‘resource’ wars.
For the purpose of international law, I propose the following definition for ecocide:
the extensive destruction, damage to 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 severely diminished.
There are two categories of ecocide: non-ascertainable and ascertainable ecocide. Non-ascertainable ecocide applies where the consequence, or potential consequence, is destruction, damage or loss to the territory per se, but without specific identification of cause as being that which has been created by specific human activity.
Ascertainable ecocide describes the consequence, or potential consequence, where there is destruction, damage or loss to the territory, and liability of the legal person(s) can be determined. The destruction of large areas of the environment and ecosystems can be caused directly or indirectly by various activities, such as nuclear testing, exploitation of resources, extractive practices, dumping of harmful chemicals, use of defoliants, emission of pollutants or war.
Examples of ascertainable ecocide affecting sizeable territories include the deforestation of the Amazonian rainforest, the proposed expansion of the Athabasca Oil Sands in northeastern Alberta, Canada and polluted waters in many parts of the world, which account for the death of more people than all forms of violence including war.
In any given example of ecocide, the extent of ‘destruction’, ‘damage’ or ‘loss’ suffered requires analysis. Whereas ‘destruction’ and ‘loss’ are easy to ascertain by way of data, what constitutes ‘damage’ for the purpose of establishing the crime of ecocide is more complex. Size, duration and significance of impact of damage to a territory in most instances shall be of relevance to determine whether the crime is made out. The Rome Statute sets out an extended definition of damage to the environment, specifically as a consequence of War Crimes, which provides useful assistance. Article 8(2)(b)(iv) criminalises:
widespread long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
Change one word here: ‘widespread long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall community advantage anticipated’, and incidents of ecocide such as the BP Gulf oil spill can begin to be properly assessed.
The wording used in this section was adopted from the 1977 United Nations Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (the Environmental Modification Convention or ENMOD). ENMOD specifies the terms “widespread”, “long-lasting” and “severe” as
“widespread”: encompassing an area on the scale of several hundred square kilometers;
“long-lasting”: lasting for a period of months, or approximately a season;
“severe”: involving serious or significant disruption or harm to human life, natural and economic resources or other assets.
These expanded definitions, which are already embedded in international laws of war, offer an existing basis upon which the international crime of ecocide can be seated at the table of the ICC. The word ‘ecocide’ bestows the missing name and fuller comprehension of the crime of unlawful damage to a given environment. As a crime that is not restricted to the confines of war alone, the categorisation of ecocide as a crime against peace is appropriate. Thus, for the purpose of defining ecocide ‘damage’, determination as to whether the extent of damage to the environment is ‘widespread, long-term and severe’ can be applied to ecocide in times of peace as well as in times of war….
Eradicating Ecocide: Laws and Governance to Prevent the Destruction of our Planet
Shepheard-Walwyn, September 2010, £17.95
Higgins proposal for an international crime of Ecocide sits at the heart of the book. Her definition of Ecocide expands on the existing environmental damage provisions already enshrined within the Rome Statute and corresponding United Nations military conventions, to render it applicable within peacetime as well as during war. Ascertainable ecocide, she argues, is a crime of strict liability which would create a pre-emptive obligation upon governments, organizations and corporations to ensure they fulfil their duty of care. In doing so, legislative emphasis shifts from the protection of individual and corporate interests to the protection of public, environmental and societal interests.
The recent Mexican Gulf oil disaster is a compelling reminder of why such a law is urgently needed. Governments, businesses and financial institutions have all bought into turning a blind eye to the destruction of the planet when economic interests are at stake. Peace, Higgins argues, is unachievable whilst the rules of the game continue to protect commercial expropriation of the planet for profit - at a price we cannot afford. Levels of pollution, damage, destruction and loss of ecosystems have reached a critical point.
Legislation has huge power to generate transformation overnight. In an emergency, remedies can be implemented with remarkable speed. Each nation in the world has the power to implement emergency legislation overnight. She cites the example of the swift transformation during World War II in America when the automobile industry was ordered to apply their skills to the making of planes for the war effort. In May 1940 President Roosevelt arranged for 50,000 new aircraft to be built. Emergency legislation was passed overnight rendering the building of cars illegal; generous subsidies were given and a short transition period of just a matter of months was granted. Engineering training was essential to ensure the planes were properly built and thousands were recruited and trained; the training was reduced from five years down to just seven weeks. Thousands of US planes flew into the air by the end of 1941: by the end of the war the number of planes built was ten times the initial specification.That's the kind of action that governments take in emergencies.
Humanity has to ask itself: given that we are in a crisis situation, is it not the time for emergency action? Can we afford to carry on as before, treating our planet as something to be bought and sold as private property to the highest bidder? Or are we willing to acknowledge that our very lives depend on a delicately balanced ecosystem and that we all need to take action to fulfil our responsibilities to each other, our habitat and future generations?
Higgins argues that there are already eco-friendly technologies which could reduce our reliance on oil, but so long as the profit motive is dominant and corporate CEOs are beholden to their shareholders rather than society and the environment, no serious efforts will be made. The crime of Ecocide, resulting in imprisonment where found to be guilty, is necessary to impose a legal duty of care upon those in positions of authority.
Providing a comprehensive legal overview of the past 200 years, Eradicating Ecocide explains the crime of Ecocide, how it will apply and who can stop the ecocide, for present and for future generations. This is essential reading for anyone who is engaged with current issues; it is also for leaders and policy-makers in all countries.
Laws from other countries - which have already been successful in curtailing the power of governments, corporations and banks - are included with analysis of the duty of care required, a duty that is owed to the public and the global earth community. The book is a crash course on what laws work, what doesn’t and what is needed.
———————————————————————————————————————————————————