The Earth needs a good lawyer
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 Master’s 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.
But how do you think he would view the idea of a global law for the Earth? After all he was opposed to the European Union, let alone global legal frameworks.
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 homogenized culture; he was eager to celebrate the higher innate wisdom found in indigenous culture.
Ten years ago you were a regular lawyer appearing in the British court system, but that’s all changed. Why is that?
In 2005 I was a barrister 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 realized those tools didn’t actually exist. But what if the earth had rights like we as humans have rights? International laws that criminalize genocide are now accepted as a valuable tool. Why couldn’t we also criminalize ecocide?
Are there any existing laws against ecocide?
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 its collapse many of the newly independent nations maintained those provisions. But ecological destruction crosses national boundaries, and is often caused by transnational corporations, so an international legal framework is needed.
During your research you found that the UN had been considering introducing a crime against nature for decades. What went wrong?
In the lead-up 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, Britain, Netherlands and France – saw ecocide dropped from the Statute.
So what hope is there of ecocide being reintroduced?
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.
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 criminalized in that case?
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.
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?
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.
Some people see you as anti-development.
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 maximize 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.
Are any retrospective provisions included in the draft law?
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.
So what’s to be done about people who are already suffering the effects of previous ecocide?
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 creates a legal duty of care for the international community to give assistance.
Is there something people can do to help?
Yes, for sure. Gift your time, energy and/or some funding! You can find out more at eradicatingecocide.com.
Watch Polly Higgins – TEDx Exeter:
Polly Higgins is visiting Australia in March 2014 and will be speaking at:
* WOMADelaide – The Planet Talks – 5pm Sunday 9th March
* Adelaide – CEDA Environment series: Earth is our business - Adelaide Festival Centre – 3pm Tuesday 11th March
* Brisbane – 6:15pm Wednesday 12th March – Earth Laws – Banco Court
* Sydney – evening lecture – Thursday 13th March – University of New South Wales Law School