Polly Higgins

by Jonny Gordon-Farleigh, STIR magazine no.05, Spring 2014
by Daksheeta Pattni

Jonny Gordon-Farleigh: Your book Eradicating Ecocide sets out not only to expose corporate and political practices that destroy the planet but to also propose new laws that might work to prevent this relentless exploitation and devastation. Could you explain what ecocide means and how this might be achieved?

Polly Higgins: The main thing I am doing in my work is giving the word ‘ecocide’ a legal definition, as the word itself has actually been around since the 1940s. The definition I give is “the extensive damage or loss of ecosystems” and within this there are two definitions of ecosystems.

But what is important here is that by giving a legal definition, by making it an international crime, we create an accountability mechanism. This key mechanism is for accountability at the top end. What we are dealing with here is corporate crime and, you could say, governmental crime. This is not always just about the actions we take that can cause significant harm but also what we fail to do — how we (specifically those at the top end of decision-making) turn a blind eye or allow an activity to continue when we should step in and stop it from taking place. 

And this is extremely important. Let’s take the example of fracking and all forms of unconventional gas exploration and drilling. Fracking, cumulatively, is an ecocide. As the evidence comes to bear in places like the US and Australia, it shows that fracking, shale gas and coal bed methane processes all cause extensive and damage and loss of ecosystems. But at the moment we can’t stop these practices because it is current law that a CEO and their directors put the interests of their shareholders first, which is to say, put money first. So any health and well-being provision for people and planet just doesn’t exist — it’s not there. More importantly, it’s not the first priority or primary legal duty of care. 

So ecocide is what an overriding, umbrella law would look like. International crime is a super-law that overrides everything else and puts in place a fiduciary of care. This means that companies, governments and financial institutions will have to consider when they invest, commit to a project or sign-off an activity, whether it’s likely to cause significant ecological harm, and if it does, they will be held to account.

This is very important because we know that causing mass damage and destruction to the earth just doesn’t work. If we destroy the very earth we walk on, we destroy our ability to live in peaceful enjoyment. If we look at fracking and all the other unconventional gas practices it provides a very useful example of mass destruction to the environment and for what? Twenty years’ worth of energy, probably less than that. Then we’re left with huge devastation afterwards. So we know this doesn’t work — short-term interest and monetary gain by the few, where a culture of greed is put above the well-being of people and planet. The law of ecocide addresses this and fundamentally flips it by making people and planet the number one priority over profit. I must say here that I’m not anti-profit. I am very pro-profit so long as it flows from innovation in the other direction. Instead of it being extracted from dangerous industrial activity, it should come from constructive industrial activities. This is a process of moving away from harm towards harmony, by law, in terms of where we take our business capacities and interests.

JGF: The most consistent outcomes of environmental summits and conferences since Rio-92 — along with routine disappointment — is that they nearly always only insist on “voluntary arrangements.” Why have these environmental summits only produced such toothless and weak commitments and lacked anything resembling statutory controls?

PH: The problem here is the spectrum of responses available to those dealing with mass ecological damage. It starts from voluntary agreements, to what I call ‘catch-me-if-you-can’ fines, to global treaties and protocols, conventions that have no legal teeth, to creating new markets that attempt to make money out of a problem (such as the clean development mechanism and carbon markets — literally making money out of hot air). None of this works because it doesn’t actually have an accountability mechanism that attaches itself to individuals who make the decisions at the top. This is a principle that is well understood in international criminal law and it’s called the principle of ‘superior responsibility’. This is basically the recognition that crimes are committed by human beings and it’s those at the top who have to be held to account for decisions made during their watch. So this is about attaching responsibility; there is no diplomatic immunity available. This principle was recognised by the Nuremberg Trials where they enunciated the whole concept of superior responsibility, also known as the ‘command and control rule’: Those at the top who make the rules are the ones who shall be held to account under a law of Ecocide. 

A law of Ecocide is the inevitable next step, as we’ve seen that the spectrum of responses has failed and, if anything, has put us in a far worse situation. The next step is imputing a legal duty of care and using the accountability mechanism through both an international and national criminal courts of law.

JGF: Your work on ecocide is a response to the failures of existing laws, but also attaches itself to crimes against peace. Does ecocide build on existing laws?

PH: I say existing laws don’t work. The big challenge here is not to tweak or slightly amend existing laws but taking the quantum leap and putting in place a very brave proposition to criminalise mass destruction of ecosystems. A lot of people say to me, “What? Is this not a crime already? Surely it must be?” Even a 7-year-old child can understand that it’s wrong to destroy the earth and that these practices should be recognised as crimes. 

But amazingly ecocide is not a crime yet, though, back in the mid ‘90s it was nearly made a crime. Many countries supported it but at the last minute it was withdrawn as the result of corporate lobbying behind closed doors. You didn’t know about it. I didn’t know it — it wasn’t visible to the public. This time around I am working to make it very visible so that it doesn’t get sidelined and hijacked as it has been in the past. My current work is putting back in place a missing crime that should have been there all along. Just imagine what our world would be like if Ecocide had been passed into legislation as international crime in the 1990s: We wouldn’t be debating about how to make the transition to a green economy, it would be flourishing. We wouldn’t be debating whether fracking is viable, we would have moved on to a completely different economy. We would also be much further along the road towards what my friend, Charles Eisenstein, calls “a more beautiful world that our hearts knows is possible.” 

JGF: Even if ecocide was accepted as an international law, it would still require member states to sign up, and there has been long history of non-cooperation. Is this where local grassroots protests come in?

PH: Yes, this is where grassroots mobilisations are really crucial. The last four years of my life has been spent messaging this out at the top level of governments, the United Nations and so forth. Now we are ready for the public mandate and this is the grassroots mobilisation — it’s about ‘We the people’ calling for Ecocide to become an international law. This popular pressure is what creates the enabling conditions for governments to say, “this must happen.” This is really important because without grassroots mobilisations around the issue of Ecocide, it will just remain a jolly good idea that doesn’t go anywhere. So now it’s a question of what we can do as people to put pressure on our governments to adopt and support ecocide. It’s my invitation to everyone to stand up and speak out and seed it within their own networks.

What we’re currently doing is putting fingers in the dyke: We’re stopping a little bit of fracking over there and unconventional tar extraction over there, a little bit of Arctic drilling up here and deforestation down there. In truth we’re not looking over the parapet and saying, “Why don’t we redirect the huge wave that is about to knock us down? And why don’t we redirect that water?” This is basically turning off the tap to the flow of money that is pushing everything in the wrong direction and really opening the floodgates to innovation in the other direction. This takes changing the rules of the game, changing the laws and making the law of Ecocide the big driver.

JGF: In terms of a law of Ecocide, what would enforcement look like? Say, if the Rome Statute was breached by an independent state, how could such a law be policed peacefully between nations?

PH: Well, what I am currently calling for is an amendment to the Roman Statute, not a treaty (treaties don’t often have legal mechanisms and are often just nice words. Here in Britain we have signed up to the Nuclear Non-Proliferation Treaty, which is to say we won’t proliferate nuclear weapons but yet we still sell them!). The Roman Statute is a very different document because it codified the existing international crimes and put in new ones, such as Crimes of Aggression. If you breach the law you face the International Criminal Court. In terms of enforcement, once we can get two thirds of the signatories of The Roman Statute (there are 122 signatories, so we need just 82 Heads of State to sign up and support the law of Ecocide) then it becomes binding in all 122 countries. If you are signatory this would mean that your government has to take action against corporations, either registered in the country or committing Ecocide elsewhere, and they would have to prosecute them for the crime of Ecocide. This does not only apply to corporations but also ministers of state who have facilitated Ecocide by signing off contracts or giving subsidies to support such practices. It is also about the flow of money and lobbying, criminalising activities that support Ecocide, as lobbying is ungoverned business. 

If you look at the draft Ecocide Act it sets out the draft legislation that can be put into effect by every country. The government has to take action and bring prosecutions and if it is unable or unwilling to take these measures then the International Criminal Court — known as the court of last resort — can step in. This is very powerful as it creates an accountability mechanism for the governments themselves for failing to take action, and it allows us to hold to account those who are positions of power. 

It is also very important when you have 122 countries legally bound by this law because those countries who have not signed up will find that their trading operations will become drastically marginalised. At the moment the US is not a signatory to the Rome Statute and it will find that all of its transnational corporations will either be unable to continue business in countries where a law of Ecocide is enforced or they will have to change their operations to comply. This means either they will become marginalised and cease to be a global player, or if they want to remain a global player they will have to comply with the new rules of the game. In this new context it won’t matter how big your industry or corporation is, you will be marginalised if you do not comply.

JGF: In 2011 a group of American teenagers sued the US Government because it failed to act to stop climate change. The suit was based on the Public Trust Doctrine, a long-standing legal doctrine that states “it is the government’s duty to protect the resources that are essential for our collective survival and prosperity, such as rivers, groundwater, or in this case, atmosphere.” How does the Public Trust Doctrine, as a legal doctrine and as a strategy to stop climate change, differ from a law of Ecocide?

PH: The Public Trust Doctrine ties into this very well for a number of reasons. What it essentially returns to, though, is although a Public Trust Doctrine imposes fiduciary duties on a government or corporation, what do you do when there is a failure to take action? A breach of the Trust Doctrine doesn’t leave much capacity in terms of remedies — at the most there might be a fine. So the law of Ecocide creates the key accountability mechanism in a criminal court of law for Public Trust Doctrines and this what I think is the missing link. 

JGF: Much of the coverage of this suit in the US has been quite skeptical yet at the moment business lobbyists are pushing through TTIP, Transatlantic Trade and Investment Partnership. What is your response to this newly planned trade agreement?

PH: Two things emerge in connection with TTIP. The first is suing and the second is free trade. First of all suing is civil litigation (as is the use of the Public Trust Doctrine) and enforcement through this is fines and payments for supposed profit losses, hence you’ve big corporations suing governments. The problem with this is you’ve suddenly got governments running scared as corporations can strip them of finances and assets, but an International Crime trumps all of this. You can’t circumvent the crime of genocide, which is to say, that Shell cannot sue the British Government for not allowing it to commit genocide in order to keep their oil interests going. Since it is an International Crime it overrides the corporation’s right to make profit, and would also mean that the head of Shell could be put on trial for genocide (this is an example, I am not saying this is the case). 

The second aspect here is the argument for free trade, often invoked by corporations as their right to pursue profit and create jobs. In crime this is not a defence, simple as that. In creating an International Crime — Ecocide — we can put pay to all of these arguments and debates. CEO’s of corporations cannot sue governments if they are being prosecuted for committing an international crime. This shows that a law of Ecocide has huge implications for bodies such as the World Trade Organisation and the whole free trade mentality, and it does this by introducing a new legal boundary. If individuals in senior positions in corporations ignore legal boundaries set out under a law of Ecocide they will be prosecuted and they will be personally held to account for crimes that cause mass ecological harm. The law of Ecocide will stop this charging juggernaut of destruction in its tracks as it would effectively act as the brakes — and it’s not about slowing it down, it’s about stopping it.

Polly Higgins is a barrister, author and international environmental lawyer advocating a different approach to preventing the destruction of our planet. 

A law of Ecocide is the inevitable next step, as we’ve seen that the spectrum of responses has failed and, if anything, has put us in a far worse situation.

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Published in STIR magazine no.05, Spring 2014