It is with great sadness that there is news today that Polly Higgins has died aged 50. Polly was a barrister, and focused her work on ‘ecocide’. She co founded ‘Ecological Defence Integrity’. Ending Ecocide was her first book.Click To TweetSustainable Development Goals_Goal 12 Consumption and Production-Polly Higgins and Ecocide.

 

Linking Ecocide and Sustainable Production and Consumption.

 

Polly Higgins

It is with great sadness that there is news today that Polly Higgins has died aged 50.

 

Polly was a barrister, and focused her work on ‘ecocide’. She co founded ‘Ecological Defence Integrity’, created the first ever non commercial global trust fund for Earth Protectors with an aim to create earth protecting laws.

 

From https://pollyhiggins.com/about/:

“Polly has been hailed as one of the World’s Top 10 Visionary Thinkers by the Ecologist and celebrated as The Planet’s Lawyer by the 2010 Change Awards. Founder of the Earth Law Alliance and The Earth Community Trust, she has garnered a number of awards for her work advocating for a law of Ecocide. She received an Honoris Causa Doctorate from Business School Lausanne 2013; in the same year she became the Honorary Arne Naess Professor at Oslo University. Her first book, Eradicating Ecocide, won the Peoples Book Prize in 2011 (updated 2nd edition, September 2015). In November 2015 VPRO (Dutch BBC) featured a documentary about her work, called Advocate for the Earth. She is ranked as No.35 in Salt magazine’s 2016 Top 100 Inspiring Women of the world list.”

 

Her book Eradicating Ecocide (2010) argues that where political will fails, the rule of law can prevail. The idea of ecocide rests on the basic principle of ‘First do no harm’.

What is Ecocide?

 

“Ecocide is 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”

 

Proposed Amendment to the Rome Statute.

 

The Rome Statute of the International Criminal Court (often referred to as the International Criminal Court Statute or the Rome Statute) is the treaty that established the International Criminal Court (ICC). It was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002.

The Rome Statute established four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. Those crimes:

“shall not be subject to any statute of limitations“, in other words no time limits will be set on persecuting the 4 crimes.

Under the Rome Statute, the ICC can only investigate and prosecute the four core international crimes in situations where states are “unable” or “unwilling” to do so themselves; the jurisdiction of the court is complementary to jurisdictions of domestic courts. The court has jurisdiction over crimes only if they are committed in the territory of a state party or if they are committed by a national of a state party; an exception to this rule is that the ICC may also have jurisdiction over crimes if its jurisdiction is authorized by the United Nations Security Council. (source: https://en.wikipedia.org/wiki/Rome_Statute_of_the_International_Criminal_Court)

In 2010, Polly submitted a proposal to amend the Rome Statute to include an international crime of Ecocide. The submission was published as Chapters 5 and 6 in her first book, Eradicating Ecocide.

The purpose for creating the offence of Ecocide as the 5th international Crime Against Peace is to put in place an international law at the very top level. 122 nations (as of 2015) are State Parties to the Rome Statute. International Crime (which is codified in the Rome Statute) applies not only to the signatory States. If and when a person commits a Crime Against Peace, the International Criminal Court has powers to intervene in certain circumstances, even if the person or State involved is a nonsignatory.

The Rome Statute is one of the most powerful documents in the world, assigning ‘the most serious crimes of concern to the international community as a whole’  over and above all other laws. Crimes that already exist within the jurisdiction of the International Criminal Court under Article 5 of the Rome Statute are known collectively as Crime Against Peace. They are:

Article 5(1) The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

1. The Crime of Genocide
2. Crimes Against Humanity
3. War Crimes
4. The Crime of Aggression

To be added:

5. The Crime of Ecocide.

The inclusion of Ecocide law as international law prohibits mass damage and destruction of the Earth and, as defined above, creates a legal duty of care for all inhabitants that have been or are at risk of being significantly harmed due to Ecocide. The duty of care applies to prevent, prohibit and pre-empt both human-caused Ecocide and natural catastrophes. Where Ecocide occurs as a crime, remedy can be sought through national courts and the International Criminal Court (ICC) or a similar body.

Currently there is no overriding mandatory duty of care (sometimes called a fiduciary duty) to prohibit, prevent significant hazards or harm, or to pre-empt by assisting to those who are facing Ecocide. Governments, business and finance are not legally bound to be accountable for some of the biggest Ecocides, despite the risk to both humans and nature. By creating a crime of Ecocide, the enforcement of a global primary duty (to stop activities that cause significant harm) ensures that all subsequent decisions are made whereby people and planet are put first. By criminalising Ecocide at an international level, a global duty of care is created.

 

Sustainable Development Goal 12

 

Of the 17 sustainable development goals , goal 12 ‘Responsible Consumption and Production’ is most pertinent to Ecocide. This goal focuses attention on decoupling growth from resource use. Thus it may be the most challenging because growth means using resources in the context of an expected 7-10 billion human beings living on planet Earth and all of them currently aiming for some degree of parity with the rich developed nations, certainly parity in terms of health and well being indicators as well as material wealth. This is about the design and delivery of physical and social infrastructure and of markets and of a “profound transformation of business practices along global value chains“.

An example would be the deforestation of the Amazon rainforest to provide raw materials and for land clearances to produce grazing for livestock. This is a prima facia case of ecocide. Brazil, under Bolsonaro, may reduce environmental protections and increase the rate of deforestation. Bolsonaro feels able to do this because he knows there is no international court of justice to stop him. The International Criminal Court has no ‘Crime of Ecocide’ to invoke.

SDG 12 argues the need for strong national frameworks for sustainable consumption and production, plus adherence to international norms on the management of hazardous waste and chemicals. However, the data is not good. Figures suggest the trend is getting worse. Total domestic material consumption rose between 2000-2010 from 48 billion tons to 71 billion tons, partly due to the increase in use of natural resources. Issues include air, soil and water pollution and exposure to toxic chemicals. Many countries are not reporting or doing enough to address these issues, with no come back even though they have signed international treaties such as:

  1. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal
  2. Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade
  3. Stockholm Convention on Persistent Organic Pollutants

 

it is one thing to have international treaties in place, but quite another if they are not enforceable.

What about the end user – you and me?

 

Critics might argue that responsibility does not rest with politicians or CEOs but with individual consumers and their buying habits, that what is required is a market solution not a new crime against peace. All that is required is for individual consumers to become aware of the toxic nature of their buying decisions and then through the market demand sustainably produced products. The argument is that polluting companies will then go out of business if they do not change their business models. There may be some merit in that approach. But the evidence both past and present for the success of that as a policy is poor, and it completely lacks an analysis of power and the processes of wealth creation and investment decisions in current complex high carbon market societies.  The ‘end user’, especially in the level 1 countries (Rosling 2018 see addendum) are ‘locked in’ to high carbon economy-societies (Urry 2011) which means that just about every single thing we buy, comes with an environmental price. Ethical buying practices are needed, but they will be nowhere near enough, in enough time.

 

There is a practical question here. It is impossible to use the law to prosecute every single end user as a colluder in unsustainable consumption and production. It is practicable to prosecute world leaders and CEO’s as climate criminals. A law change would focus the minds very quickly, and deliberate breaches of international treaties could be on the agenda in global boardrooms.

 

Every single person living right now is affected by these breaches, and yet have little redress against those knowingly and willingly trashing ecosystems. This was Polly’s main argument and illustrates her point act where the political will fails, perhaps the rule of law may prevail….however we need that law.

 

Polly will be greatly missed, but her legacy is strong and does not die with her.

 

 

Addendum

Levels 1-4

See Gapminder: https://www.gapminder.org/topics/four-income-levels/