THE LAW OF 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 severely diminished.

At certain points in history the world changes gear. We abolished slavery, apartheid was outlawed and we criminalised genocide. Each time humanity reached a tipping point; no longer could we justify using blacks as slaves, destroy lives and allow others to determine the outcome of a man's life. We get to a stage that we turn and face the truth, even when it is not a sight we wish to see, we give it a name and we say, 'no more'.

We are now at another point of acceleration; we are poised to move the gear stick up to the next level. We have our foot on the pedal and we are ready to go. But wait. To go to the next level we need new rules. Number one rule is set out below, others are contained within this book. Collectively they make for a safe journey into the unknown. Treat this book as your guide to take with you on your journey, to equip you with the language and the route map to the new world.

Ecocide is 'the extensive damage, destruction to 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.'

The Law of Ecocide is a law which will change the world. The ramifications for business are huge and the lives of all who live on Earth. It will signal the beginning of business taking full responsibility. Humanity will celebrate the end of a polluting and destructive era. The earth will be given a chance to heal.

Ecocide comes in many forms and is either human-made or caused by catastrophic disaster. Human-made ecocide is corporate-driven activity such as deforestation, pollution dumping, mining. Natural ecocide includes tsunamis, floods, earthquakes, rises in sea-levels – in short any event which causes mass ecosystem collapse.

The Law of Ecocide imposes a superior obligation and a pre-emptive legal duty upon individuals who are in a position of superior responsibility within corporations, banks and governments to prohibit profit, investment and policy which causes or supports ecocide. The crime of ecocide criminalises damage, destruction or loss of ecosystems over a certain size, duration and impact. Make ecocide unlawful and a legal framework of nation-to-nation responsibility can be set up to finance humanitarian and environmental aid for ecocide-affected territories.

Crime Against Peace

There are certain principles of universal validity and application that apply to humanity as a whole. They are the principles that underpin the prohibition of certain behaviour, for example apartheid and genocide. Such abuses arise out of value systems based on a lack of regard for human life and are now universally outlawed. The most serious of all have been declared Crimes Against Peace by the United Nations and they apply across the world, superseding all other laws. A value system based on a lack of regard for all life now needs to be universally outlawed as well. Kill our planet and we kill ourselves. Ecocide is death by a thousand cuts: each day the life-source which feeds and nourishes our human life is damaged and destroyed a little more. Restoration of territories which have been subjected to human ecocide is not being undertaken voluntarily and as a result conflict and resource wars are expected to escalate over time.

Creation of the Law of Ecocide will close the door to investment in high-risk ventures which give rise to ecocide. Decision-making will be determined on a value-driven basis premised on intrinsic values, not permit allocations. Protection of the interests of the wider Earth community will then become the over-riding consideration for business, driving innovation in a new direction.

When the existing system fails to prevent that which it is set up to help, the scales of justice swing out of kilter and the rules of the game are called into question. How do we create a legal duty of care for the earth? That was the big question that has driven my thinking. I looked at existing environmental and corporate laws and I saw they were not fulfilling this particular legal obligation. None of our existing laws set out a proper duty of care for the earth. We have a Universal Declaration of Human Rights, but the same does not exist for the earth. The earth has rights too, I reasoned, such as the right not to be polluted and the right to life. What if we had a similar Declaration for the earth, a declaration that gave formal recognition to the rights of non-human beings, such as the soil, the seas and the air we breathe. How much easier it would be for me, as a barrister, to represent my client the earth in court. Just as I can represent the unspoken words of a child because we impute human rights to them, so we can do the same for the earth.

Earth Rights

We may not have thought of other beings as having rights: however, they do exist. They may not be written down as formal laws in some jurisdictions, but to many natural law is a given. The right not be polluted is a right that belongs to the earth as much as it belongs to humans. To breach that right can be a result of neglect or an abuse. It can be an act or an omission; either by failing to do something, or by refraining from doing something, or by doing something that can result in damage, destruction or loss of ecosystems. Many of our existing laws are premised on permit allocation and limitations, not prohibition – these are laws that have proven themselves to be unfit for purpose.

Permits to pollute protect the polluter, not the earth. Fines levied after the event, when caught exceeding acceptable levels of destruction, can be sidestepped, litigated or paid-off. No amount of voluntary codes, environmental impact reports or energy efficiency targets will change matters until the concept of the 'environment as property', with ownership and thereby accrual of superior rights by the owner, is overturned. Slaves used to be property. It was argued that to present them with rights would be uneconomic, untenable, bring business to a halt. However, those businesses who profiteered out of slavery and sugar reinvented their wheels and not one went out of business as a direct result of the laws of abolition being put in place. This was in part because their slavery subsidies were replaced with subsidies which were for loss of business and to assist with facilitating new business that was not premised on the profiteering of slaves. Public pressure, mass petitions and recognition of rights for slaves combined to tip the balance and stop the trade. Laws were passed first in the UK, then other countries soon followed suit. Slaves were no longer another man's property, to use and abuse as he so wished. No longer was it deemed acceptable to treat other persons as if they were items, to be bought and sold for profit. The shift that occurred when slavery was abolished was seismic; extrinsic values were replaced by intrinsic values. No longer was a human valued by his price tag; now a human was valued in and of himself. The ethical imperative trumped the economic imperative.

Slowing pollution levels by permit allocation just prolongs the inevitable problem; stopping the pollution at source changes business overnight. By making large-scale pollution a crime can stop further long -term damage from occurring. Prohibition is the inevitable next step; as has been demonstrated by current laws, small incremental steps are not going to get us there. We tried the small steps – now we need to take the leap. Pollution cases in the USA are being thwarted for lack of trans-boundary legislation. International law has a gap that needs to be filled.

In 2007 I researched the possibility of creating a new body of Earth Law. The outcome was an invitation from the United Nations to speak on my proposal for a new body of law, starting with a Universal Declaration of Planetary Rights. My proposal for a Declaration triggered a response that was the beginning of international engagement on the issue. I spoke at a UN Conference on Climate Change in November 2008, just after Ecuador had successfully voted by referendum to include in their new Constitution a Bill of Rights of Nature. The top twelve rights and freedoms were drawn up and were presented at a conference in Sweden the following year; just months later Bolivia decided to take it on and they opened up the process to the people. Thousands of people engaged in the process of drafting the Declaration and the outcome is the Universal Declaration of the Rights of Mother Earth which Bolivia is now taking to the United Nations. It will stand alongside the Universal Declaration of Human Rights and the new rights will create a legal framework from which other Earth Law can evolve.

Ecocide is the governing mechanism to protect the earth's right to life. By naming mass damage and destruction as ecocide, and by giving it legal definition, I realised we can halt escalating greenhouse gases at source, prevent further instability and prohibit dangerous industrial activity overnight.

Appointing Guardians for Damaged Lands

By way of analogy, in formative years a parent owes a duty of care to their child. His and/or her duty is to ensure the well-being of their child, for that child is utterly dependent on the parental care. As a mother or father, the duty as primary carer extends to others as more children arrive into the family circle. Motherhood and fatherhood are roles specific to ensuring the well-being of the child, a responsibility that diminishes as the child enters into adulthood. When a parent abuses their child, or fails to act to protect the child's interests, that parent has failed in their duty to their child. In recognition of the child's inability to defend him/herself, laws have been put in place to provide a remedy when a parent fails in their responsibilities. In such an instance, the court will appoint a guardian to represent the child, to speak on his/her behalf and ensure his/her well-being is addressed in the course of the proceedings.

Replace the child with the planet and the mother with a corporation – for instance a logging company in the Amazon – and a very similar scenario exists. The Amazon, like the child, is unable to speak of the damage that has occurred and the needs it requires to ensure future well-being. Unlike the child, it has no recognized rights in law and as a consequence no responsibility is identified as being owed by those logging the territory. If caught, the company will be fined for logging unlawfully, nothing more. Without the recognition of the Amazon's rights and the corporation's responsibilities to the Amazon, a guardian cannot speak on behalf of the territory in court and the individuals in the company cannot be effectively held to account. However, the well-being of humanity requires that those with superior responsibility in the company owe an over-riding duty of care to the territory within which they are working. Where that duty of care has been breached, the fiduciaries – the directors – have failed to fulfil their moral obligation to prevent unreasonable loss, damage and destruction.

In 1948 the United Nations created the crime of genocide in response to the mass atrocities which arose out of World War Two. Today we face mass destruction of the planet, but unlike genocide, ecocide is not a crime of intent. Ecocide is a crime of consequence, one that often arises out of the pursuit of profit without imposition of a legal duty of care. Currently there is no crime to address this anomaly during peace-time. War Crimes prohibit mass environmental damage, yet there is no law to stop the daily destruction that has become the norm for business. Corporate law dictates that profit determines activity, regardless of the consequence to others in the earth community.

Giving a name to the problem

Ecocide can be the outcome of external factors, of a force majeure or an 'act of God' such as flooding or an earthquake. It can also be the result of human intervention. Economic activity, particularly when connected to natural resources, can be a driver of conflict. By its very nature, ecocide leads to resource depletion, and where there is escalation of resource depletion, war comes chasing close behind. The capacity of ecocide to be trans-boundary and multi-jurisdictional necessitates legislation of international scope. Where such destruction arises out of the actions of mankind, ecocide can be regarded as a crime against peace, against the peace of all those who reside therein – not just humans but of the wider earth community as a whole. In the event that ecocide is left to flourish, the 21st century will become a century of 'resource' wars.

During wartime environmental damage is already a crime. By extending the same provisions (the size exceeds 200 kilometres in length, impact on ecosystems exceeds three months, or severely impacts on human or natural resources) to ecocide, we can protect the earth from daily destruction in peacetime too.

There is an additional reason for seeking international recognition of ecocide: until we have identified the problem, we are unable to provide the correct solutions. International law evolves in response to the changing world, and is by no means a perfect beast, growing and changing direction as it expands. But it is an arena that must develop, by necessity. Such is the extent of ecosystem destruction with global consequences for us all that principles and legal recognition on a par with genocide are now urgently required for ecocide. Corporate-related destruction and pollution clean-up determined by voluntary governance, we know, has been manifestly unsuccessful. Creation of the crime of ecocide creates a pre-emptive obligation to act responsibly before damage or destruction of a given territory takes place. Thus, the creation of the illegality in itself translates a moral obligation into a legal duty. In doing so, the burden shifts dramatically, sending a powerful global message to the world of a reinforced moral stance for us all, not just in business, to take responsibility for the well-being of all life.

I owe versus I own

When the old that does not work collapses, space is created to make way for the new. It is at this juncture that we are afforded an invaluable opportunity to put in place new systems that do work and systems that provide resilience. However, as all architects know, first we must ensure the correct foundations are in place. The bedrock upon which we build is our choice: it can be solid, one with the inherent values of the planet at its very centre. It can be based on intrinsic humanitarian and ecological values, values which belong to all of us and the planet globally. When seeded from the outset, all else that comes thereafter will grow and flow from them. These values will renew and shape the world of our financial systems, our legal precepts, our governmental bodies, the very decisions which we will make in our every day life. These values and their corresponding rights can be placed at the centre of all decision making, which will in turn shape our behaviour and action for the future. Where our decisions are not intrinsically-value based, then our decision-making will be built on fast dissipating sands, which can do little to ensure we create a better world. Climate negotiations demonstrate a non -engagement on owing a duty of care, instead the focus was on ownership. Markets to buy and trade trumped any dialogue about owing a duty to ensure the climate is restored. The very fact that we have a 'negotiation' about a global issue, as if it were a market trading house where everyone has a different pricing scheme, is an indication of just how far removed we have become. Our climate is not for negotiating as a commodity; it is our duty to create a system that guarantees its and our health and well-being.