The Power of International Law to Create the New World – An Interview with Polly Higgins
Editor’s Note: At time of writing, Polly is on a speaking tour of Australia and New Zealand — check out dates and locations here.
Maddy Harland meets Polly Higgins, a barrister who is campaigning for the United Nations to adopt an additional crime against peace: Ecocide.
by Maddy Harland, editor of Permaculture magazine – inspiration for sustainable living
In my two decades working for Permaculture magazine I have met many fascinating and wonderful human beings but my recent meeting with the barrister and campaigner, Polly Higgins, was a turning point. She prompted a leap in my understanding of the power of law and our collective capacity to change the world overnight. I had heard of Polly’s campaigning work but I had not fully realised the far-reaching potential of international law. Polly deftly stretched my worldview. Bear with me if the subject of ecocide sounds grim… the outcome of these meetings was utterly inspirational.
What is Ecocide?
There are already four international Crimes Against Peace: Genocide, Crimes Against Humanity, War Crimes, and Crimes of Aggression. Polly says there is a missing 5th Crime Against Peace and that crime is Ecocide: the destruction of large areas of the environment and ecosystems. Obviously ecocide can be caused by severe weather events like tsunamis and volcanic eruptions, not directly attributable to specific human activity but there is another category: Ascertainable Ecocide. This is the destruction, damage or loss to the territory, caused by human activity – people, corporations, and nations. Activities such as nuclear testing, the exploitation of resources, mining practices like tar sands extraction, the dumping of harmful chemicals or the use of defoliants, the emission of pollutants or war. Examples of ascertainable ecocide affecting sizeable territories include:
- The Athabasca Oil Sands in northeastern Alberta, Canada
- The deforestation of the Amazonian rainforest
- Water pollution
So who is Polly Higgins and how did she become such a force for nature? Polly’s earlier career was in art but at the back of her mind was a persistent voice that called her to study law. She tried to ignore it whilst studying for her Masters but it became more and more insistent. Six years later whilst working as an art dealer in London, the call became non-negotiable and she applied for a scholarship. She won. Doors opened. More scholarships followed and she eventually became a barrister. All was well until a few years later she realised that if the Earth was a client in law, it would have no rights. This was one of those life-changing moments. “I didn’t know what I was doing anymore.” That night she went home and told her husband what had happened. They decided to take holiday and ‘go up a mountain’. “When I came down I had decided to leave the Bar.” At the time she thought, “It’s the Earth that really matters here… there are enough barristers that can do the job inside courts, but nobody is doing anything out there. I need to get out and look at the bigger picture.”
By now I am realising that I am in presence of an extraordinary human being….
I asked Polly what took shape after this. “In 2007-2008 I was thinking why don’t we have a legal duty of care for the Earth? If I was to represent the earth in court as a barrister, how could I? My client doesn’t have any rights. A barrister’s tools are the law which we use to fight the case. It occurred to me that the Earth needed rights. The Earth is a big being so it wasn’t just a matter of the rights in one country. This needed to be universal, rather like the Universal Declaration of Human Rights. In July 2008, I dropped everything, treated it like a legal brief, and researched how it could work. At one of the UN’s top climate change conferences in November 2008 I gave the speech about how we needed to put this law in place. It was as if I dropped a huge boulder in a still pond – the ripples went very, very far. Within ten months Bolivia got in touch. I had got together a team of lawyers to create a draft document of rights which is what Bolivia has now adopted. They renamed it, quite rightly, the Universal Declaration of Mother Earth Rights because they’re coming from an indigenous place.”
So how did the concept of Ecocide arise? “When I was at the Climate Negotiations in Copenhagen at the end of 2009, talking about the Declaration it occurred to me that you can be shouting for your rights but it’s an absolute waste of time if you can’t exercise some form of criminality over those who are trampling over them. For instance, my human rights to life are governed and protected by the crime of murder. If someone takes my life, they have committed a crime and they can be put on trial in the courts. If this is on a mass scale, it’s genocide. If the Earth as a being has the right to life, how would we govern it? We need a new language in the form of an international law akin to genocide.
“What would the crime of ecocide look like? The four existing international crimes are known as crimes against peace. How would ecocide sit with these? I discovered that all it would take is an amendment to a pre-existing statute, so we don’t even have to write up a whole new statute, we can amend the one that houses all the four crimes against peace. When there is destruction that leads to loss of resources, which leads to conflict, which leads to war – Darfur was a war about water, Iraq was a war over oil – that’s what I call ecocide and ecocide is a crime against peace.”
Polly realised that the additional amendment for ecocide is absolutely vital. It is the missing link. The UN recently published a report saying we’re reaching a tipping point due to system collapse. They did a number crunching exercise last year, which all governments sponsored, demonstrating that in 2008 the top 2,000 global corporations had caused $2.2 trillion of damage and destruction (a conservative estimate). In 2009 it had almost doubled to $4 trillion. For 2010 they think it will be $8 trillion. “Somewhere along the line we’re escalating completely in the wrong direction and that’s largely due to corporate ecocide. This is destruction we deem to be the norm. Corporations are not deliberately destroying habitat but, as a result of their activities in pursuit of profit, they’re causing enormous damage and they’re not taking responsibility for it because there are no laws to make them do so.”
At this point Polly tells me that when the Abolition of Slavery was proposed, the companies using slaves to produce crops like sugar in the West Indies predicted a collapsed in trade due to the increase cost of wages. This never happened and the world was changed overnight by this law. Slavery still exists, of course, but now it is entirely unacceptable. There is no reason why ecocide shouldn’t become similarly unacceptable. Roll on civilization!
The new world
I really wanted to know, however, what the world would look like when the crime of ecocide is adopted by the UN? Polly replies, “We are not very good at looking at the new world, we’re always looking at the nightmare rather than the vision. The flow of money goes into damaging, destructive activity, which has been normalised under legal contracts. All our big banks invest millions and millions of pounds and dollars into the Athabasca Oil Sands in Canada. One in six pension funds in the UK has the majority of their finance coming from Athabasca Oil Sands investments. By creating a crime of ecocide, we close the door. We say you can’t invest there and so the money then has to flow elsewhere.
“CEOs will no longer be able to invest in ecologically destructive businesses. They will risk prison, as will the board of directors. Banks will no longer finance them. It will be too risky. Heads of state will no longer condone ecologically devasting projects. Corporate subsidies will be pulled.
“Imagine I’m a CEO and you’re one of my directors and I am telling you, ‘If we invest our money, time and energy into the extraction of oil from the Athabasca Oil Sands, we are at risk of going to prison. Our shareholders will find it untenable to support criminal activity. The banks will also no longer finance this activity and the head of state will no longer support this policy because it’s a crime.’ Suddenly, companies, banks and governments will have a direct incentive, both legal and financial, to change direction. “These large corporates have power and we need them to switch from being the problem to becoming the solution.
“What we will see is a huge incentive to create energy sources locally rather than huge centralised solutions with big land grabs and solar panels out in the desert. We’re obviously going to need some of that but there will be a lot of industry on a ground level, on a localised level, on a national level. This is hugely important, because at the moment we don’t have government policies supporting this. Our governments have their heads in the sand and they are looking for a technological fix. It’s not going to happen, so the sooner we put laws in place, the sooner we can plan a structured fossil fuel power descent. This is really about the biggest job creation scheme in history: the big, green, clean economy in the world. It is about facilitating this and rolling up our sleeves and getting practical. It is about a far healthier, far cleaner society on a macro as well as micro level.”
In essence this is an overnight shift in worldview. “Commercialising and qualitising the planet is not going to work. Greenhouse gases are the symptom of a larger cause. There’s some very good number crunching being done which identifies that the top 173 companies have created 70% of excess greenhouse gases in the last 20 years. We really need to turn the tap off upstream….
“This is about the developed world taking responsibility. The planet is not there for us to commoditise. Once we view the planet as a living being, we recognise its intrinsic value rather than placing an extrinsic value on it. How we have come to view the planet is deeply flawed, certainly within the western consciousness. This needs to be realigned and law is a powerful tool to begin this process.”
Giving voice to our intent
As we were talking I felt myself shift. I could clearly see that making ecocide a crime could indeed be a vital turning point in our history, akin to outlawing slavery and genocide. These crimes still happen, but law renders people and nations accountable. Polly has deep insights into the nature of positive change. I asked her what happens when people start ‘to give voice to their intent’, to use her words.
“It is a kind of a magic. When you give voice to what you want to see happening in the world and when it comes from a place of caring, especially if you are collaborating with other people, it creates a process of new future visioning. Once we start giving it language it makes it happen. Doors of opportunity open and the right people appear. We each have a role in creating the new world and giving voice to the world we want to see, literally getting back to Martin Luther King’s ‘I have a dream’. He spoke about that dream and galvanised thousands and thousands of people around the world.”
I tell Polly that Permaculture magazine is very much about dreaming up the solutions, it’s not about investigating the detail of what’s wrong. Sometimes we are accused of being idealistic and intellectually lightweight but this is a very conscious policy that we’ve held since 1992 — to give voice the dream.
“Permaculture is about seeding the new world, quite literally as well as metaphorically,” Polly replies. It is vital that we raise enormous public awareness around closing the door to destruction so that the new world vision becomes the norm, not the exception. At the moment it’s the exception.”
Polly and her team are building a huge global campaign around ecocide in the run up to the Earth Summit in June 2012, 20 years on from the original Earth Summit. “We are going to put in the laws that create the clean, green new world.” For many, the yearning for change is intense and painful. The tipping point on our planet has been reached and we cannot afford to sit back and do nothing. “I want millions and millions of people around the world to call on their governments to say this needs to be made law, not just ecocide but also the Universal Declaration of Mother Earth Rights. This is a new body of earth laws that are needed to help protect people and the planet.”
I realise that this is possibly the most important conversation of my life and deep inside me stirs again the passion for this beautiful planet and the poignant yearning for the new world. Polly leaves me with the words, “Giving voice is very empowering. It’s about getting connected in the community, engaging in the ideas and giving voice to the new. It is about dreaming the dream and then putting it into action. Something that a lot of indigenous people know and understand is that once we can find language for the vision, we de-mystify it, we give it a name and the healing begins.”
I urge you wherever you are in the world to find out more. Join the campaign and lend your voice to this work. A new world is indeed possible.
At time of writing, Polly is on a speaking tour of Australia and New Zealand — check out dates and locations here.
- Eradicating Ecocide: Laws and Governance to Prevent the Destruction of our Planet; Polly Higgins; Shepheard-Walwyn, London 2010.