How can so much damage be done to the earth without anyone being held accountable? This question made English barrister Polly Higgins think. Her conclusion is that the current environmental laws are not fit for purpose and better laws are required. Ever since, she has considered herself an Earth Lawyer committed to preventing large-scale destruction of ecosystems through the legal system.
Her mission resonates with us, so we’re eager to meet Polly while we’re in the United Kingdom. As always, planning ahead is difficult for us since the wind determines our progress. When we leave the Isle of Man, we don’t know how long the wind will stay favourable. It turns out we can sail three days and nights straight, all the way to Land’s End, the most South-Westerly tip of mainland England. Along the way there is just enough mobile network coverage to set up a meeting with Polly. Only a few days later we interview Polly in Totnes.
Care and love for people and the earth
We ask Polly why she wants to change the legal system to protect the Earth. “What motivates me is a deep care and love for people and the earth,” Polly explains. “We live in a time in which the destruction of ecosystems has such widespread, severe and long-term consequences, that there is a name for it: ecocide. The harm can be caused through dangerous industrial or climate activity. Consider, for example, the exploitation of tar sands, fracking, overfishing and deforestation. But also land-grabbing, which makes indigenous peoples no longer able to exercise their culture.”
According to Polly, this injustice is possible because of a lack of responsibility towards the earth. “We are extensively destroying ecosystems, causing harm to the earth, humanity and to ourselves. I want to do something about it.” Polly believes that criminalizing ecocide is the solution.
Aren’t there enough environmental laws and litigation? “If so, how is it possible that the earth is being damaged so much?” Polly replies. “Clearly, the legal system is failing to effectively prevent large-scale damage to ecosystems. Because there are no or only economic sanctions for the destruction of ecosystems, a potential fine can simply be regarded as a financial risk. Litigation, such as climate change cases, can take very long and are often difficult and expensive. In the meantime, ecosystems are not protected and the outcome is often too little, too late.”
Polly also considers the Paris climate treaty to be inadequate. “It is a step in the right direction, but limited to policy making. It does not lead to the protection of ecosystems, let alone criminal prosecution”, she explains.
Ecocide as an international criminal offense
“The solution is obvious: criminalize acts that have widespread, long-lasting or severe effects on ecosystems. The extraction of oil from tar sands and deforestation are obvious examples. When a senior official of a company is prosecuted for a crime that has occurred, research shows that investors, banks and the general public do not accept criminal behaviour. Companies can lose their license to operate – their business model is no longer supported. Such is the seriousness of the crime of ecocide that Polly considers it to stand alongside genocide, war crimes, crimes against humanity and crimes of aggression as the missing 5th crime.
That sounds quite radical. Polly goes on to assert her argument. “It may seem radical to grant rights to the earth, but the legal system is a powerful means of bringing about behavioural change. Think of the new laws in the 19th century that abolished slavery. Many thought this solution went too far at the time. It was a direct confrontation with the prevailing, powerful economic interests. Nevertheless, it was possible to abolish slavery on moral grounds. What may have seemed radical then, has become common sense today.”
Towards an international treaty
When is ecocide expected to be a criminal offense? An existing international treaty, the Rome Statute, has to be amended to add ecocide as a criminal offense. At least 83 of the 123 countries that have signed the treaty must agree. On the one hand, this is a very difficult task. On the other hand, every country has an equal vote. The vote of an island state threatened by sea-level rise counts as heavily as Canada’s vote, for example. Because the effects of climate change threaten many of the smaller states, Polly’s plan is already widely supported.
Nevertheless, it remains a challenge to convince so many countries of the criminal nature of ecocide at an international level. Polly: “It’s politically sensitive, which explains why I’ve been working on this for 11 years.” It is important that there is a lot of popular support for the introduction of ecocide law. When governments have a democratic mandate, it makes it a lot easier for them to commit themselves to the criminalization of ecocide.
Everyone can be an Earth Trustee
Polly explains that ecocide law derives from a simple command: Do not harm. “When we put the Earth and humanity above all else, we go back to the original function of the law. Namely that of a healer of the wounds of society. The starting point should be that we all have a duty of care towards the earth. Anyone can be involved and speak out for the well-being of the earth. Everybody has the ability to be an Earth Trustee.”
But how? Not everyone is as eloquent and passionate as Polly. A smile appears on her face. “We can all name injustice when we encounter it. Everyone can do something in her or his area of expertise. I am a lawyer, so I choose the legal road. Use your unique skills, authorise yourself to do something that will improve the situation. Dare to protect the earth, dare to be great! ”
Polly has accepted the challenge. Her commitment and objective impress us. When large-scale destruction of ecosystems is made a criminal offense at international level, ecosystems are better protected and, where necessary, prosecution takes place. We are all dependent on these ecosystems for a sustainable future. From that perspective, criminal law is an important sustainable solution. To make ecocide an international crime, it is important that everyone does what is in his or her power to protect the earth. Find out more at Polly’s Eradicating Ecocide website.
Polly’s mission, passion and personality impress us. We wholeheartedly support her and will keep you posted on future developments as they occur. We’ll also search for inspiring local examples of how the legal system can successfully protect the earth.