A legal duty of care - protecting our planet
abracad, · Categories: environment, externally authoredInterview with Polly Higgins
by Katy Olivia van Tergouw
London barrister and author Polly Higgins discusses the legal aspect of the Earth's right to life, which is threatened by the Ecocide practiced by commercial interests. Source: Share International, October 2013Â
"The crime of ecocide is a natural evolution of law: the Ecocide Act is not radical in its remit. On the contrary, it is part of an evolution of legislation dealing with the impact of pollution and the principle of superior responsibility. In the eyes of the law, creating the crime of ecocide is not about closing the door to evil. It is in fact about protecting a higher value: the sacredness of life, all life."Â - Polly Higgins
During her years as a barrister in London courts, where she represented both individuals and corporations on discrimination cases and corporate law, Polly Higgins became convinced that the Earth needed a good lawyer. The planet was also being treated unfairly and the tools of Ms Higgins' trade were not adequate. Quite simply, the laws to protect the interests of the Earth do not exist.
In 2010 Polly Higgins proposed to the United Nations that Ecocide be made the Fifth Crime Against Peace. At present the Rome Statute sets out Four Crimes against Peace (genocide, crimes against humanity, war crimes and the crime of aggression). Her book, Eradicating Ecocide: Laws and governance to prevent the destruction of our planet won the 2011 People's Book Prize for non-fiction, and has been followed by Earth is our Business - changing the rules of the game.  Â
Katy Olivia van Tergouw interviewed Polly Higgins for Share International in Amsterdam, the Netherlands. (See also the interview with Polly Higgins in SI July/August 2010.)
Polly Higgins
Share International: Are people surprised or put off by your approach to protecting our planet? Is this something you recognise?Â
Polly Higgins: It's interesting. There's a whole world out there that doesn't find it strange. Buddhism understands it. The indigenous world understands it. When I first started talking about the Earth's rights and the Earth's right to life, I had a lot of lawyers saying, questioning my approach: "What are you talking about? The Earth does not have the right to life." And I would say: "The Earth is a living being; surely the Earth has the right to life?"
I ended up thinking there must be others who think like me. And I looked around and discovered there are 370 million Buddhists who really get this and there are 380 million indigenous people who think this is completely normal. That's the size of Europe; 750 million people think like me.
In London I was surrounded by conventional lawyers. And then I started to discover that there were lawyers who think like me. So you start going into that space more deeply and you end up in a spiritual engagement space. You begin to realise this is a spiritual journey. Whether you call it God or Buddha, or angels or our highest being, we're connecting with these energies, and we can choose whether or not to connect with the real source energy.
Once you know that, there's no going back. You can feel it, and you can engage with it. It's like exercising a muscle. You exercise by meditation or by conversations with your higher beings. Everything changes: life has purpose then and so much more understanding.
SI: Have you always thought this way or did this come at a certain age?
PH: I had a very Catholic upbringing. My experience was that Catholicism is a very 'command and control' religion, run by men and for men. Also my Catholic schooling was run on fear, violence and control. So I really rejected religion and anything that had to do with religion.
Until just under five years ago I had never really meditated. When I was looking round investigating who was thinking like me, I found the Schumacher College in Devon. I was there for a week's course on Earth Jurisprudence. There I came across a meditation led by Satish Kumar [author and environmental activist]. It changed my life overnight. I wouldn't be doing what I'm doing now if it wasn't for my meditation.
SI: Has meditation made you more creative?
PH: Oh, hugely. I think my purpose in life is to be creative. The Law of Ecocide is a part of that.
SI: And has meditation given you a stronger urge to serve?
PH: Yes, in fact for me, what I do is about being in service to something greater than the self. I think that something mentally shifts within us when we see ourselves in service. You're expanding your vision on what's possible. You're expanding your circle of concerns. It's not just me or me and my friends, you look to animals' welfare, you look to the Earth's welfare, you look to the welfare of all beings. And you understand that all living is sacred.
SI: Can you expand on the idea of ecocide and how you came up with that idea?
PH: I was speaking at the climate negotiation in Copenhagen in 2009. I was talking about Earth rights and the Earth's right to life. Someone in the audience said that we need a new language to deal with this mass damage and destruction. We need a new language to create a new world. I found myself thinking that this mass damage and destruction is like genocide, only its ecocide. Ecocide - it should definitely be a crime! And I didn't actually know that that word existed then. I rushed back to London and went down that rabbit hole of rigorous intellectual scrutiny, looking at it and going back to the first principles. What are the existing international crimes we have? How would this law stand with the rest? Could we add it to existing law? I remember walking up and down in my bedroom saying: Should we be creating a crime of ecocide? Surely we don't need to make a crime of it?
Actually, this is really about facing the shadow self and giving it a name. And only when we face the shadow self and give it a name can the healing begin. We have to see the problem, and we have to face it. It has to be seen, be visible and be named. And this is really important, because forgiveness and compassion comes from when we really do understand what is not working and we identify it.
We've identified that this ecocide must stop. By giving it a name, giving it definition in legal terms we can use law; law is a tool and can be a force against destruction.
Our laws have caused a host of problems, unwittingly I mean, not with intent.
We put in place laws that don't look at the consequences that allow us to have a kind of wilful blindness. Even if we do know at some level, we don't want to know. This wilful blindness is kept in place by existing laws. For instance, it is the law that a CEO and his or her directors put the interest of their shareholders first. This means that they put profit first. And when you do that without considering the consequences, you end up with our global economies making money out of mass damage and destruction. You end up with commercial tar extraction, fracking, genetically-modified foods, nuclear energy, storing up huge amounts of food which we don't know what to do with, the problem of waste, arctic drilling and so on. It all causes enormous harm to people and our planet and all those who live there. It's a system that doesn't work. We know it doesn't work. We just have to look at the animals. Species extinction is escalating at a terrible rate.
SI: If ecocide were to be accepted as a fact from now on, would all the environmental destruction immediately stop?
PH: What I propose is a five-year transition period, because every law needs a transition period. This is actually quite generous in legal terms. And what happens during the five-year transition period is that these companies that are causing mass destruction have to change their practices.
Essentially what happens is, for example, that dirty energy companies become clean energy companies. Their subsidies are withdrawn - phased out over the five years. And at the same time they're given subsidies for innovation and direction. That's very important. This way you're making the problem into the solution. And this is a real recognition that actually many of these companies have a lot of really good people working within them, but they are stuck in a system that doesn't work. So it's by giving the international legislation a framework for a new system to be put in place and to transition very fast into it. And to give all the help required to achieve it. It will need help: it will need government support, government policy, government funding and private investment. This is about sending out long-term investment signals into the international community. It will be life-affirming. And that changes what banks invest in, it changes everything. It turns off the flow of money into dangerous industrial activity and it turns on the flow for investments in the other directions. It creates a shift in consciousness on a collective level.
SI: Could you say more about the existing environmental laws?
PH: There are over 500 environmental legal agreements throughout the world. The problem is that there's plenty of intent there, but no legal enforcement. Plenty of nice words, but no consequences. For instance, in Britain we are not expanding our nuclear capability, but we make nuclear weapons in Britain and we sell them to other countries.
This is really about truly being accountable and putting laws in place. It's one thing to say that something is a law, but it's another thing to actually give it an enforcement mechanism and actually enforce it. So, this is why it's so important to make it a crime to cause mass damage and destruction.
It's also about moving away from fines. Fines are 'catch-me-if-you-can' laws. If a company does something wrong environmentally, if they are caught perhaps they will be fined - and then they can litigate for 10 years. If the community that has been adversely impacted takes action against these companies, it would be very hard for the community because the huge companies often have vast financial resources and legal expertise. And if the community does win, it would be too little, too late. Where's the justice in that? Where's the accountability? It's a very powerful disincentive if you actually think you have to be held to account in a criminal court of law. You make sure you make good decisions in that case.
SI: A law against ecocide sounds so logical - why doesn't it already exist?Â
PH: I believe that it will happen when our civilisation is ready. And I think we're ready now. This isn't popping up for no reason at this time.
SI: In which countries do you think the law of ecocide is needed most now?
PH: There is ecocide happening in many places throughout the world. There's hidden ecocide playing out in South America caused by the North - the big multinational companies that are registered in America, Britain or here in the Netherlands, for ex_ample. Also in Africa, and developed countries like Canada there is so much mass damage and destruction happening - for instance, take the Athabasca Tar Sands. [The Athabasca oil sands, also called the Athabasca tar sands or Alberta Tar Sands are located in north eastern Alberta, Canada. The Athabasca deposit is the largest known reservoir of crude bitumen in the world and the largest of three major oil sands deposits in Alberta.]
By making ecocide an international law you're fundamentally changing the framework right across the world. And that's very important. It's not just about putting it in place in one country. Because all that would then happen is big corporations would only de-register and then re-register again in another country. It's about creating a level playing field right across the board.
SI: There is a second kind of ecocide you speak about. Can you say something more about that?
PH: There's a second kind of ecocide that is equally important, but which is not often understood. It's the naturally occurring ecocide, like rising sea levels, tsunamis and floods.
The law against ecocide is not just for environmental destruction caused by humans. It's also about creating a legal duty of care, so that all countries come together and help those who are at risk from naturally occurring ecocide. We need to start that dialogue now.
Polly Higgins:Â Earth is our Business - changing the rules of the game. Shepheard-Walwyn (Publishers) Ltd. London, 2012.
(For further information, see www.endecodice.eu for the European Citizens Initiative, to make ecocide a crime in the EU, and www.eradicatingecocide.com for the Wish20 Global Citizens Initiative in support of making ecocide an international crime. The closing date for signing the petition is 21 January 2014.)
© Share International
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