Most now accept that the Earth is fragile, but can the legal system help to secure its future?
Among the ideas currently gaining currency is adding a crime of ecocide to the jurisdiction of the International Criminal Court (ICC). If this idea is accepted, ecocide would join war crimes, aggression, crimes against humanity and genocide as a fifth crime against peace.
The rationale behind the campaign for a crime of ecocide is similar to that of other ecological legal initiatives; namely, that addressing environmental imperatives requires a seismic shift in attitudes, practices and culture, in both the corporate and political spheres. Catastrophes such as Deepwater Horizon highlight the failure of existing mechanisms to ensure that the commercial world’s financial and economic prowess is matched by a duty of care for the planet on which it operates, and the rights of both its current inhabitants and those yet to come.
It reflects a redefinition of the ‘rights’ debate away towards the idea that ‘planetary rights’ merit as much protection as their human counterparts. The aim is for the law to treat the earth not as an inert commodity, but as a living being with intrinsic value.
It was in this context that a public debate recently took place at University College London between ecocide’s leading proponent, the campaigning barrister Polly Higgins, and leading environmental lawyer David Hart QC. The merits of a crime of ecocide not at stake, the debate focused on whether ecocide should be a crime of strict liability, or whether knowledge should be required.
The argument in favour of strict liability centres primarily on the gravity of the ecological predicament. So acute is the environmental malaise that current practices of fossil fuel extraction and heavy, polluting industries must be put to an end, Higgins contends. Data from the TEEB (The Economics of Ecosystems and Biodiversity) report assesses the cost of corporate environmental damage in 2008 at $2.2 trillion, at double this in 2009 and with an anticipated further doubling to nearly $9 trillion in 2010. Government acts and omissions add an additional tier of impacts, bringing into prospect what Sir David King has termed a century of ‘resource wars’ if current patterns of environmental degradation are not arrested.
Current environmental law regimes such as the UNFCCC can be compared to treating a sick child according to Higgins. Instead of no longer feeding the child that which is making it sick, the dominant approach is simply to reduce the amount that is fed. In her analysis, this would mean the child dies.
Similarly, by seeking to reduce the greenhouse gas emissions that are causing climate change we are failing to arrest the potential destruction of the planet. Requiring “knowledge” risks the avoidance of culpability as chief executives sought to deny any inkling of an impeding environmental disaster. Strict liability would establish an unequivocal prohibition of serious environmental harm, the magnitude of the offence evidenced in the absence of mens rea, or ‘mental element’, as, for example, in the offence of causing death by careless driving.
A crime of ecocide is needed not simply to punish wrongdoers. Equally, if not more, important is that it serves as a deterrent, engendering a change of mindset and corporate attitude that revolutionises ‘business as usual’ scenarios. Without a strict liability requirement, proceedings would be unduly lengthy, complex and far less certain of success. A knowledge requirement is, she argues, ‘the ultimate ‘get out of jail’ card. The deterrent effect would, at least in part, be incapacitated.
Given that companies currently only have a legal duty to maximise shareholder profits, nothing short of a sharp regulatory stick will create the change required. That stick would be the prospect of a criminal prosecution for a crime of ecocide under the ICC. Ms Higgins’ approach, however, envisages the prospect of prosecution as an equally effective weapon as the legal sanction itself. She proposes that, once ecocide was on the statute of the Court, there would be an amnesty – a period of several years in which the corporate world would be enabled to revolutionise their economic practices and embrace a new culture of ecological trusteeship, making them part of the solution and not just a cause of the problem. The large-scale flow of financial resources into innovative green technologies would be facilitated to further the revolution. Should companies fail to respond positively in this way, however, punitive legal proceedings would be forthcoming.
The counter-argument put by David Hart QC centred on pragmatism over principle. The importance of ecocide to the effectiveness of environmental protection means the overriding priority is to get it into the Rome statute governing the ICC. This will only happen with widespread political support, support far more likely to be offered if there is a knowledge requirement to reduce governments’ fear of a corporate backlash. Further, as a crime under the jurisdiction of the ICC, it would need to deal strictly with the most serious of crimes – crimes not only of abhorrent environmental outcomes, but of appalling environmental conduct. Only a requirement for knowledge would provide this and prevent the Court from being overwhelmed with cases.
Establishing ecocide as a strict liability offence would also distinguish it from the existing crimes under the auspices of the ICC, all of which require the ‘mental element’ to be proven. Indeed, this forms part of the Rome Statute underpinning the ICC in Article 30. Identifying why ecocide should have a different requirement to genocide would almost certainly pose a challenge.
Both arguments have merit, but both neglect a critical point – given the various initiatives, voluntary and mandatory, that have sought to inspire a revolution in corporate and government environmental practice, can a crime of ecocide have a realistic prospect of achieving what over thirty years of endeavours have so far failed to?
The problem is that as urgent as ecological salvation is, recent history suggests it is destined to occur incrementally and, perhaps, frustratingly slowly. To suggest that the inadequacy of financial flows into green technologies is attributable to the absence of a crime of ecocide to motivate such a switch is to oversimplify a complex problem.
Similarly, to imagine a world without any heavy industry or greenhouse gas emissions is simply beyond the imagination of even the most fervent environmental advocates. And the effect of an amnesty from prosecution of a court whose capacity is limited to four cases concurrently is likely to be limited.
None of this, however, is a reason not to support the campaign for a crime of ecocide, but rather to do so as part of a package of measures – legal, political, technological and economic – to effect the lasting environmental change and intergenerational equity. An amendment to the Companies Act 2006 to require corporations to uphold a duty of care for the environment in the pursuit of profit maximisation could, for example, be a complementary legal component of such a package.
Frances Aldson has a Master’s degree in environmental law from SOAS, University of London and is currently studying for the Bar on a Queen Mother scholarship from Middle Temple.
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You state that companies have a ‘legal duty to maximise shareholder profits’ and I have seen this written elsewhere but have never found the source of this.
Can you point me to your source as my understanding is that company directors have a duty to ‘promote the success of the company for the benefit of its members as a whole, and in doing so have regard (amongst other matters) to…’ (http://www.legislation.gov.uk/ukpga/2006/46/part/10/chapter/2)?
As I interpret this any rational and competent company officer would take the long-term view for the business to thrive – and that means a healthy society and its infrastructure.
Of course we know that the reality is one of greed and short-term gain but that’s not the same as being a legal requirement.
The fact that companies only have a legal duty to maximise shareholder profit is evident in s 172 of the Companies Act – directors must act in the best interests of the company and its members an to ensure its success – this is what they can be held legally accountable for. The fact that they must do this ‘with regard to’ the impact of their activities on, inter alia, the environment is legally meaningless – it does not give rise to a cause of action if/when the company causes significant environmental harm. The fact that BP was highly negligent in respect of the Deepwater Horizon disaster does not mean they could be shown not to have had ‘regard’ to the environmental impact of their acts/omissions. We can all have ‘regard’ to something without being held to account for it.
Thanks for the explanation Frances.
Doesn’t this mean that ‘maximise shareholder profit’ is an interpretation of s172 – it isn’t law as such?
Moreover, this interpretation (which only really took hold when Jack Welch suggested it in 1981) can work against the interests of the company in the long-term if short-term profit maximization compromises long-term business viability or ‘success’ which is precisely what destroying your market amounts to (consider fish stocks)
Coming from far away in Texas, I should note that ecocide is de facto, if not de jure here. Whether it involves failures of deep drilling and consequent leaks in the Gulf of Mexico, or the fracturing, through injection of chemicals that is making possible the production of oil and gas from shale deposits, the interest of energy and its production companies prevail — no matter what the consequences may be for the earth and its people.
The “consequences” are heat, light, running water, transportation and the biggest consequence seems to be the most prosperous human race of all of history. Everybody benefits from burning fossil fuels, especially those so against it. I don’t see ANY of them moving to agrarian pastoral third world societies.
While you are correct to point out that much of our current economic prosperity is thanks to fossil fuels, you appear not to understand that in order for our children and grandchildren to have similar prosperity, we have to protect the ecological integrity of planet earth – integrity which our continued use of fossil fuels has been conclusively proven by science to be placing in jeopardy. This means we have to use the less environmentally harmful means to generate the heat, light, transportation etc that yes, we are fortunate to enjoy. These less environmentally harmful means already exist in the form of renewables – the problem is that with fossil fuels still readily available, companies and governments need a major push to make the switch. A crime of ecocide for corporate and government practices that continue to cause significant harm the earth would be one way to bring about the change that is needed. Otherwise, the prosperity that you and I so clearly enjoy will not be available to those who follow us. And surely such selfishness has no place in modern society.
Very interesting and necessary idea, i think. Reforms to company law are long overdue, the sole criteria of proper boardroom behaviour seems now to be to maximise profits for shareholders – all the talk of ‘stakeholders’ in businesses is therefore meaningless. Businesses and their boards and executives should have a legal duty to safeguard their customers, workers and communities. Without such requirements capitalism is inherently dangerous to the planet.
This proposal will never fly with the big powers of the world as it is today. They will never allow the ICC to control a law that is basically aimed at their own industrial base.
Genocide is one thing. ‘ecocide’, with all it’s possible interpretations, is quite another.
cant see this ever working to be honest, the entire western world would eventually have to sue itself. I agree that there needs to be more leadership from governments, but this is never going to happen either as governments including our own are too wrapped up in their own profit making lives and feathering their own nests (Tony Blair seems to have spent his life in airplanes jetsetting around the planet since retiring as PM). Companies are not the only ones to blame, and remember that companies are made up of individual people. Individuals at home are also responsible, those running 3 or 4 cars from home, leaving electrical goods and heating running 24/7. We have all been arguing about these things for years and years and years, and only this week a report has been released showing that carbon production has increased massively during the last year. People just dont care; they do not see that they on their own make a contribution, and they dont see what they as individuals can do, i.e. the old no point in me stopping if no one else does argument.
The human race only understands and reacts to disaster. One day we will recognise environmental issues and we will do something about it (probably go to war with one another as resources run out). By that time as with many things that we do, it will probably be far too late to do anything about it other than face a long march to an unstoppable extinction event. In the meantime who cares? we will all be dead anyway before it gewts serious, who cares about the future beyond our own lifespans? Do as Jeremy Clarkson does, Enjoy yourselves while you still can! If we are lucky, maybe we might move off and colonise other worlds and rip them to pieces as well in the never ending search for self serving pleasure.
Nice idea Ecocide, however it is completely impractical, and could never be implemented by a group of individuals who would be as guilty of the offence as those aginst whom it would be raised.
I can wait for this to implemented. The full weight of the law can then be brought to bear on the wind power generating companies for the destruction and loss of habitats. The cause of the 6th Great Extinction.
More from the general bonkers department, do hope the Mail picks up this one!
“Most now accept that the Earth is fragile…”
You need to spend more time outside. The planet is actually very solid and long-lasting. It’s been through ice ages, extinctions, floods, droughts, plagues, meteor strikes.
It will still be here long after the last of m’learned friends has packed up his briefcase.
I’m afraid you are against the vast consensus of scientific opinion on this one.
D.Jackson:
“the entire western world would eventually have to sue itself”
Legal costs are a necessary overhead for society, and should be minimsed. Ecocide would result in a permanent wealth transfer to lawyers.
I recall when the Left campaigned for greater prosperity and freedom for all, rather than indulged in such blatantly self-interested rent-seeking, leaving the weakest in society to pay the bill. See renewable energy costs and the subsequent fuel poverty.
The human rights are now secondary to the “rights” of a fictional abstraction
- Steve
Interesting article, and well written. Our legal system, taken as a whole, legitimises and facilitates the destruction of our planet. This is because in law nature is generally viewed as a resource to be endlessly exploited.
A new crime of ecocide is necessary to ensure that corporations recognise that they have a duty of care towards nature (as we all do), and that there will be criminal sanctions if that duty of care is breached to the point that a corporation causes ecocide (eg. the Deepwater Horizon tragedy).
The law should also be a tool to bring about a radical shift in social attitudes. The human race cannot survive on a dead planet – we need a healthy Earth that can sustain life. We need to respect our planet as a living being and not treat the planet as a ‘resource’.
Many of these environmentally undesirables are providing host states with considerable financial injections. I am sceptical as to how many host states would be willing to campaign for substantive provisions such as ‘ecocide’ and risk ending the financial benefits.
I also take issue with the argument that ‘ecocide’ should be a ‘strict liability’ offence. If ‘ecocide’ were to be listed alongside the other human rights crimes, then surely mens rea would be absolutely necessary as different activities would involve different levels of environmental risk.
The conditions set out in order to prove certain human rights crimes are relatively clear (although much more difficult to prove). I have very little knowledge on this area thus maybe wrong, but how are we, with any sufficient degree of precision going to set out pre-requisite conditions in order to prosecute these types of crimes.