Polly Higgins – Eradicating Ecocide

03 November 2011

PollyHiggins

In early-September, international environmental lawyer and author, Polly Higgins visited the University of Auckland to give a very well-attended public lecture on the topic of ‘Eradicating Ecocide’.

Professor David Williams, a former Rhodes Scholar, made the initial contact with Polly when he was last in England on sabbatical at Oxford University and the Auckland leg of her visit was organised under the auspices of the Faculty’s New Zealand Centre for Environmental Law.

Ecocide refers to crimes against nature. Polly Higgins starts with the legal fact that all non-human nature is treated either as property or as common resource. In neither instance is the environment, nor all that lives within it, afforded the protections of legal personality that can be claimed by human or corporate legal persons. Higgins’ contention is that crimes against nature, Ecocide, should be recognised as the ‘missing’ fifth crime against peace, completing the suite of Genocide, Crimes Against Humanity, War Crimes and Crimes of Aggression as outlined in the Rome Statute of 2002 which constitutes the International Criminal Court (ICC) in The Hague.

International legislation would be necessary because the protections of corporate personality insulate individuals from liability. Higgins argues that this necessitates a shift from a property-based approach to trusteeship law for which there is precedent in the trusteeship system established in article 75 of the UN Charter.

The proposed definition of Ecocide is "damage, destruction or loss of ecosystems 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". This extent is precisely defined as the size of the affected area exceeding 200 square kilometres, having an impact on ecosystems for more than three months and having a severe impact involving serious or significant disruption or harm to human life, natural or economic resources or other assets. Oddly, these standards are taken from those that apply in time of war, as outlined in the Environmental Modification Convention of 1977, yet in peace time there are no such limitations in place.

Under this proposed scheme, there would be three categories of proposed offence: Ecocide by Damage or Destruction (strict liability with an objective test), Ecoslaughter (reckless knowledge), or Ecocide (with intent) which would impose criminal liability upon responsible individuals such as CEOs and government ministers.

An intriguing analogy was drawn between the past treatment of slaves and current treatment of non-human nature. The same claims of economic collapse, public demand and economic necessity were made and solutions were made for postponing the end of that course of exploitation a century and a half ago as are being made today. Particularly illuminating were industry’s proposed solutions such as market ‘cap and trade’ approaches, tradeable permits, self-regulation of the industry, improving efficiencies and promises of improved welfare with promises to pay fines if any of these conditions are breached; all the same then as they are now and arguably just as ineffective.

In answer to a question that a crime of ecocide may be too radical a change to be implemented, Polly responded: "Something is always radical when it is innovative. The origin of the word radical means to pull out from the roots. I'm not anti-profit, but this is what I'm suggesting to turn around this sinking ship very fast."

Polly suggested that possible New Zealand examples of ecocide are lignite mining in Southland and oil drilling in the Raukumara Basin because of both the scale of the environmental impacts but also the amount of greenhouse gases that will be emitted from the burning of the resource yielded.

She has already had some success in advancing law protecting the rights of nature. Her ‘Law of Mother Earth’ proposed to the General Assembly of the United Nations in April 2010 was adopted by the Bolivian Government and incorporated into domestic law in 2011.

International support for the crime of Ecocide is building momentum and the credibility of this approach to enforcing legal protection of nature was advanced by a mock trial held on 30 September in Court One of the United Kingdom Supreme Court. Based on the presumption that the British Parliament had passed an Ecocide Act, CEOs of polluting corporations were played by actors with a fact situation and corporate defences closely modelled on those of the 2010 BP oil spill in the Gulf of Mexico. The jury returned guilty verdicts.

Polly’s book, Eradicating Ecocide: Law and Governance to Prevent the Destruction of Our Planet (Shepheard-Walwyn, London, 2010) is a winner of the People’s Book Prize 2011 in the United Kingdom and a finalist for UK book of the year.