ENVIRONMENT II - WORLD

The Earth’s advocate: Defending our environment

 

In 1992 the Earth Summit in Rio de Janeiro designed international legal protocol for the protection of the environment. Twenty years later, British barrister Polly Higgins believes those laws have failed.
“Environmental law as it stands is clearly not fit for purpose,” she says.
But her sweet Scottish brogue has only tones of optimism. Her perpetual smile reveals faith in her proposed solution – an international crime of ‘ecocide.’
Seven years ago, working as a corporate lawyer in London, she found herself fighting for things she didn’t believe in. She was representing clients who looked at the environment as collateral damage in pursuit of profit.
So Higgins became an international environmental lawyer. She has taken on one client, pro bono, and became advocate for the earth.
“I recognised that we don’t have legal duty of care for the earth. It doesn’t exist. I realised that the earth was in need of a good lawyer,” she says.
This month she will travel to the Rio+20 summit, as an official observer, to petition for the legal rights of the planet to be acknowledged under her proposed law of ecocide.
She has tabled international legislation at the UN that would make the “extensive damage, destruction to or loss of ecosystems” the fifth crime against peace, alongside genocide, under the jurisdiction of the International Criminal Court. Her law of ecocide would empower individuals and communities to act as legal guardians of the planet in the courtroom.
“We are giving voice to the earth. And not just for the earth, this is really holistic legislation,” she says proudly. “It is creating a crime against humanity, a crime against nature and a crime against future generations.”
She argues that the present legal landscape sees the protection of the environment as secondary to commercial success. And fines have proven an ineffective instrument for the regulation of the relationship between large corporations and the environment.
Ecocide would lift the corporate veil and target individuals under the premise of “superior responsibility.” CEOs would be directly responsible for the actions of their companies; heads of state and ministers for the effects of their policies; and investment institutions responsible for financing damaging and destructive action. The penalties would be potent, focused on prison sentences as direct deterrents.
But Higgins doesn’t want the proposed law to be merely punitive; she hopes it will become a stimulus for environmental innovation and a new ideology.
She likens ecocide’s potential to the work of William Wilberforce who led the campaign for the abolition of slavery in Britain for more than 40 years. One month after his death in 1833 the House of Lords passed the Slavery Abolition Act, ending slavery in most of the British Empire.
It also forced the sugar cane and cotton industries, who argued the end of slavery would be crippling, to redevelop their business model and innovation became the solution. Higgins hopes the introduction of Ecocide will have the same effect.
“My ideal world is that we don’t end up with any prosecutions,” she says. “Instead the big corporations become the innovators and reinvent their wheels. Law has been an enormous catalyst for change throughout centuries, and we need them to do that.”
Last September ecocide was put into practice at a mock trial at the UK’s supreme court.
“It allowed us to road test a piece of legislation that hasn’t yet been put in place,” she said. “For the purpose of the day we were able to apply national legislation as if it had been transposed from international law and we put it to the test.”
The defendants, played by actors, were the CEO’s of a large hypothetical fossil fuel company responsible for alleged crimes against the environment. Coincidentally, the crimes closely resembled BP’s oil spill in the gulf of New Mexico and the extraction of the Athabasca Tar Sands in Canada.
The prosecution was lead by Michael Mansfield QC, and Nigel Lickley QC was for the defence. The jury – pooled from the general public – found the CEOs not guilty on one count of ‘ecocide’ for the oil spill and guilty on two counts for the tar sands extraction.
The Rio +20 summit gives world leaders an opportunity to officially endorse the introduction of ecocide under the Rome Statute of the ICC. Ratification of an ecocide amendment would require 86 signatures out of the 121 countries party to the statute.

And despite a growing list of world leaders shunning the summit and the environmental agenda being obscured by economic Armageddon, Higgin’s believes Rio +20 can help ensure her legacy is less sardonic than Wilberforce’s.