The Earth's Legal Team

An interview with Polly Higgins

Polly Higgins is the author of Eradicating Ecocide and The Earth is our Business. Having worked as a barrister in the UK for many years, she has devoted herself to finding ways to strengthen legal protection for the environment and to have ecocide added as the fifth serious crime of concern identified in the Rome Statute which established the International Criminal Court.

SGI Quarterly: Why have legal frameworks not been put in place to protect environments, people and other living beings from the devastating effects of waste and pollution?

Polly Higgins: The existing legal frameworks are not fit for purpose. We can see this all too obviously. You just have to look at the Amazon forest and other examples of huge environmental devastation and degradation, such as the Athabasca Tar Sands in Canada, which is 45,000 km2 of land with ancient arboreal peatlands and wetlands that are being destroyed for oil.

One of the biggest problems we have with existing legal frameworks is that they prioritize the polluter, not the people and the planet.

Protesting the tar sands pipelines outside the provincial legislature in Victoria, B.C., Canada, October 2012 [© Zack Embree]

Two hundred years ago, we didn't understand the mass damage and destruction we were causing through business and industrial activity. We created laws without looking to the consequences. So it's a learning process, it is not a blame game. Big business is caught in a system that prioritizes profit first. The law encourages maximizing profits without looking to the consequences.

This is about recognizing that it is time to upgrade our legal systems and bring them in line with a wider consciousness and wisdom, where we now understand that if we destroy our planet, we destroy our ability to live in peace and enjoyment. It is about realigning our laws at the international level, understanding we are all interconnected and interdependent and that all life is sacred.

When you embed those values at the very top in international law, it has a very dramatic, automatic impact on laws right across the world. That is what the law of ecocide would do: create a realignment of our priorities toward people and planet first. It is a fundamental shift of what we say we value. What is it we need to do today so that people live safely in peace and enjoyment tomorrow?

This is something that Buddhist and indigenous communities recognize, that the Earth herself has the right to life. And when we abuse that right, our own ability to live in peace and enjoyment is compromised enormously.

In 1948, we recognized the law of genocide, when civilization got to a point when we said we can't do this anymore, we have to outlaw mass destruction of humanity. It took World War II for that to really crystallize in our minds. Genocide still sometimes occurs, but it has become unacceptable. It has become something over which we can seek justice. We recognized that it was morally wrong, and we made it a legal wrong.

That is also what we did with slavery. The moral imperative trumped the economic imperative. There were fears that the economies would collapse, but they didn't. We went on and found new solutions.

Spraying of the toxic herbicide Agent Orange during the Vietnam War, 1969. Since then several UN treaties have introduced provisions to limit the environmental impact of war. [CC Brian K. Grigsby]

And I say that civilization has reached a point now that we have to do the same with the mass destruction of the Earth. It is morally wrong, and we need to recognize it as the missing fifth crime against peace, along with genocide, war crimes, crimes against humanity and crimes of aggression. If we fail to add ecocide into the equation, we are still only dealing with mainly human-to-human engagement, and that is not enough. We have to look to the health and well-being of all beings. There is a direct link between our well-being and how we value the very Earth we walk on.

At the moment it is not legally wrong to cause mass damage and destruction to the Earth, and that's a huge problem.

SGIQ: Do you simply want to punish or penalize industry, or do you want to find win-win solutions?

PH: I am a great believer in permaculture principles. One of these principles is that the problem can become the solution. You just need to give the right framework of understanding. The law of ecocide will prioritize innovation in a very different direction. Instead of continued profiteering from fossil-based systems, for instance, companies will have the ability, financial support and government policy to enable and empower them to become the green solution. It will trigger a green economy. Legislation works well because it sets the framework of where business can and cannot go. It sends out a powerful message to shareholders and to investors as to what they will or will not be able to do and therefore where they are going to go next. That is very powerful. It mobilizes society, it mobilizes governments, and it mobilizes investments into innovation in a completely different direction.

SGIQ: Are there signs of a shift, even if ecocide is not yet enshrined as the fifth crime against peace?

PH: I have just come back from Kazakhstan, which is one of 10 countries that have crimes of ecocide on their general penal code. Kazakhstan put that in place when they banned nuclear testing and the use of nuclear weapons. They know what it is like to suffer a huge ecocide. Nuclear testing goes back to 1949, and third-generation children are still being born malformed or dead. It's tragic. They have to train doctors to deal with melanoma, with cancers, with huge malformations. So this is a country that has drawn a line in the sand and said, "We will criminalize mass damage and destruction."

It is not just use of nuclear weapons or testing, it is also about nuclear waste. That is very important here because that is something that we are storing up for future generations. We have to take responsibility.