Making a Case for the Earth

The award-winning barrister, author and ecocide activist Polly Higgins speaks to Cherwell.

Originally posted by Chloe Cornish on cherwell.org, 23rd February 2013

“Guilty.”

Photograph: TEDxExeter

It was a unanimous verdict by the jury of a ground-breaking mock-trial in September 2011. The Athabasca Oil Sands Project had been found to constitute ‘ecocide’, instated in this scenario as an international crime. The prosecuted CEOs of companies operating in the Tar Sands, played by actors, squirmed as the ruling was read out. This was a test run, but if the proposed Ecocide Act becomes reality, bona fide CEOs will find themselves in the firing line.

Ecocide is defined as ‘the 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.’

International barrister, Polly Higgins, is working to make this a crime punishable by international law. As a corporate lawyer, Higgins found herself asking, “Why is it that I’m representing people in court, who I get on with very well, who think it’s normal to make money out of mass damage and destructions?” Whilst the law mandates that CEOs produce the best return for shareholders, it does not force them to act in an environmentally-responsible way.

But Higgins is careful not to lay the blame with abstract concepts like individual greed or corporate irresponsibility. “The law was basically determining that we weren’t looking to the consequences,” she explains. “So the law has caused the problems in a lot of ways.”

In 2006, Higgins became a lawyer for the earth itself, a client which had thoroughly inadequate protection under the law. “There are over 500 pieces of international legislation to do with protecting the environment and they’re clearly not fit for purpose. You just have to look at the Amazon,” she says, with a note of exasperation.

Not content to let this stand, it seemed to Higgins “that it was about fundamentally changing what kind of law we were applying, it’s about changing the rules of the game.” Existing environmental laws are premised on permits and fines (“catch-me-if-you-can laws”), which do not encourage prevention of environmental damage. Higgins believes they must start from the Hippocratic principle, “First, do no harm.”

“We need to apply the same care as the medical profession to the earth.”

But these changes do not come easily, and Higgins’ initial submission of a proposal to the UN in 2010 was unsuccessful. “They did nothing,” she laughs, “They didn’t respond to me.” Undeterred, Higgins kept working to build support. “Now there’s huge international engagement in this… the international legal community really get it, they see this as progress towards where the law needs to go.”

Higgins was clear that the Ecocide Act needed to have the force of international law, so “being a good lawyer I went back to first principles to look at what international laws we have.” These were the Four Crimes Against Peace (genocide, crimes against humanity, war crimes and crimes of aggression) incorporated in the Rome Statute, the founding Treaty of the International Criminal Court (born in 2002). “They’re the crimes of most serious concern to civilization as a whole,” says Higgins. “Hence the need to include Ecocide.”

And precedent for such an inclusion does exist. Higgins recently discovered that a 1985 precursor to the Rome Statute, the draft Code of Crimes Against the Peace and Security of Mankind, had included Ecocide right up until 1996. “It just goes to show you can’t keep a good idea down,” says a delighted Higgins, who was “absolutely over the moon” about the new information. “It was a recognition that at the international level the legal community had very seriously engaged with this… it wasn’t a radical idea. We’re just reinstating what should have been put in place.”

The aim of Ecocide legislation is to change the behaviour of governments and global business, with one of the most important tenets of Higgins’ act being ‘superior responsibility’. This principle means that CEOs will be held personally responsible for environmental damage done by their company’s actions (plus, the ICC can only try individuals). “It’s actually about ensuring that those who hold the power of decision making at the top end, who hold power over many millions of people below, are held accountable.”

Higgins thinks these changes will have a “huge”, but positive, effect on the future economy. “This is about building resilient economies, about getting away from a boom-and-bust cycle.” She sees it as “incentivizing technologies that will have long term effects for future generations.”

Economic realignments were continually highlighted by speakers at Oxford’s Climate Forum a few weeks ago, identified as one of the keys to combatting dangerous future weather change. In a keynote speech, physicist Professor Myles Allan even suggested that a feasible solution would be to mandate fossil fuel extractors to use carbon capture storage to bury the equivalent amount of carbon they are releasing.

So whilst legal and technological solutions appear to be available, political will for change has been lacking. “I think politicians, like big business, have been bound by law that puts profit first,” says Higgins, generously. “It’s a mixed bag. Some countries have fantastic legislation… but nobody comes to the table with clean hands here, especially because of environmental legislation not being good enough to tackle this until just now.”

But Dapo Akande, who is University Lecturer in Public International Law and Yamani Fellow at St. Peter’s College, Oxford, says that the ICC is subject to major limitations. “The ICC actually can’t do a lot. The fact that it has a global reach shouldn’t induce us to think it can do a lot of things.” Realistically, “it can only undertake a small number of prosecutions of symbolic value.”

And as an organ of international justice, the ICC is powerless to make a difference to the activities of several major global players. The USA has an uneven affiliation with the ICC, and India and China have not even ratified the Rome Statute.

But despite these drawbacks, “it’s worth starting somewhere,” says Akande. “The reach of the court is actually wider than might appear at first sight,” he adds, pointing out that the court can try any national of the states who are party to the Rome Statute, even if they have acted on territory of a state which is not party, and vice versa.

However, another potential stumbling-block for Higgins’ law is that alterations to the Rome Statute must be approved by two-thirds of the 121 states that have signed and ratified it. 81 heads of state must be persuaded that consciously protecting the environment is in their interest. How is Higgins planning to convince them?

“I’m not going to do that, you are, and many, many millions of people,” she laughs, “This is about calling for bold, moral and courageous leadership as citizens and those who have more public platforms.” Higgins may be a successful negotiator, but “this is not something I can do alone.”

Akande is not so optimistic about the Act’s chance of making it to the ICC agenda. “A number of other crimes are competing to be on the list (for consideration),” including acts against terrorism, corruption, and drugs trafficking. “I suspect people will be afraid to put anything else on the table.”

However, Akande agrees with Higgins that the power for change rests with the public. “It is not widely appreciated how influential civil society can be in making changes. Talking to people in government I’m often impressed that they do take the views of civil society seriously.” If the general sentiment swings towards better environmental legal protection, the law is much more likely to follow.

On 21 January, Higgins’ call for citizens to speak out against Ecocide was answered. A European Citizens’ Initiative was launched to make Ecocide a crime under EU law. One million signatures are now required to force the European Commission to consider the proposed legislation (one month later they had 9,165 signatures). Higgins is confident that the number will be reached thanks to an “appetite for change”: “Oh it’ll happen, absolutely, not a problem.”

Higgins has called her work, “my quest.” When I ask if she sees herself as a knight for nature, she laughs merrily (as she has done throughout the interview). “There’s something that happens when you stand up and speak out about something you care about. When you shine your own light you give people permission to shine theirs,” she muses, referencing Martin Luther King. “God knows when I stand up on platforms I do that every time. More and more people do that and the message spreads. It’s not just my quest, it’s other people’s quest.”

“I think it’s the challenge of our times,” Higgins says soberly. “A most unique time for the whole history of civilization. If we don’t resolve this we won’t be around for much longer.”

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