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Issue 253
March/April 2009
Economics of Place

Biocultural Diversity

Restorative Justice
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Restorative Justice

To protect our planet we need a Universal Declaration of Planetary Rights.

Without trees we wouldn’t be here. Trees are life-givers, providing us with wood to build with and paper to write on as well as a resource for heat and power. They cool the air in hot, dry weather by the transpiration of water vapour into the atmosphere. Their roots take water and nutrients from the soil and help bind it together on hills and mountain slopes. Most importantly, they act as carbon sinks and manufacture oxygen: counterbalancing global warming. Even in death they enrich the soil. Without trees this would be a barren world.

Recent scientific findings established that the release of terpenes from tree canopies leads to cloud formation that cools the climate. Given the ancient forests’ massive canopies, these findings serve to underline and reinforce the critical role of trees and wilderness in maintaining a viable atmosphere. Yet logging continues on an unprecedented scale.

Let me give you a snapshot closer to home of our own contempt for trees. In the past five years, London councils alone have chopped down almost 40,000 street trees, including some more than 100 years old. Healthy mature trees are being felled by risk-averse insurers and councils because of the mere suspicion that they may affect neighbouring properties with subsidence, or fall on people. Yet a report commissioned by the London Assembly said that only 1% of tree removals were justified. Despite the key role Britain’s urban trees play in combating climate change and creating pleasant environments, they are under threat.

What a skewed world we live in! If Nature is a hindrance we get rid of it, destroy it. If it has utility we abuse it. We do not accept the killing of humans, but what of the life-support systems of the Earth? Could it be that the razing of the Amazon is in essence arboricide of the highest order?

Trees remain largely unprotected; they do not have rights. We accord rights to abstract entities such as corporations, churches, universities, councils and governments; yet, unlike trees or plants, they are just abstract concepts that humans have created. We have created the legal right for a corporation to stake its claim on a piece of land, but we have given no rights to the land itself. The entities that exist on that land – the trees, the birds, the water, the fish, indeed the very soil – have no rights at all. We can see, smell and touch those entities; they grow and manifest themselves in tune with the seasons and we benefit from their bounty. In all senses they are real. But a corporation is not tangible in the way a tree is. It is an artificial concept that we have created for our benefit. It is a fiction, but it has standing in court, where trees, rivers and animals do not.

Children who cannot exercise rights can have legal proceedings instituted on their behalf to protect their welfare. Likewise, Nature cannot exercise rights, but if rights were to be accorded to it, individuals or groups should be able to apply to the court for legal guardianship, and for the right to litigate on behalf of natural objects.

Much of our justice system is based on retributive justice – to penalise the perpetrator by way of fine or imprisonment. But what of the entity that has been harmed? The inadequacies are even more apparent when dealing with action by humans that results in the destruction of the wider Earth Community. Although imposing a fine on corporations who harm the environment may be a deterrent (and this in itself is questionable), it does not repair the damaged relationship. In reality fines are blunt instruments.

In recent years we have begun to see a surge in the application of restorative justice, with growing success. The Truth and Reconciliation Commission established in South Africa to investigate apartheid crimes adopted a restorative justice approach. In the UK, innovative and successful projects include the Glasgow Restorative Justice Service, set up in 2003 to encourage young people to take active responsibility for the effects of their behaviour not only on those harmed, but on themselves, their families and the wider community.

Restorative justice can be applied to the natural world; it is the recognition of an existing reality and the creation of a framework to express our ethical relationship with Nature. It is, as Cormac Cullinan, author of Wild Law, put it, “a plea to start thinking in less ‘homocentric’ terms. We are not protecting natural objects for future human generations; we are protecting them for themselves. The environment does not exist for humans; it may be that humans exist for the environment. Humans are members of an Earth Community and we cannot ignore the rights of that wider community, which makes our own existence possible. We need a new body of law whose first priority is to protect the ecological community in which we live.”

Imagine the day when we have a Planetary Rights Act. After all, we have a Human Rights Act. It would stipulate that the overriding objective is the wellbeing of the planet. Think how that would change how we approach business, how we determine our choice of energy supplies; how it would shape our transport policies.

This is not radical or unachievable. Take a look at Ecuador: by an overwhelming margin, the people of Ecuador voted for a new Constitution that is the first in the world to recognise legally enforceable ecosystem rights. This is a historic moment in the evolution of the protection of our planet. Ecuador is the first country to codify a new system of environmental protection based on ‘rights’.

Article 1 of the new ‘Rights for Nature’ chapter of the Ecuadorian Constitution reads: “Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. Every person, people, community or nationality, will be able to demand the recognition of rights for Nature before the public bodies.”

Ecuador’s constitution recognises that ecosystems possess the inalienable and fundamental right to exist and flourish, and that people possess the legal authority to enforce those rights on behalf of ecosystems, requiring the government to remedy the violations of those ecosystem rights.

What is so interesting is that this Constitution has been born out of crisis and driven at local municipal government level. Because there have been so many abuses – pollution, violence and corruption by foreign mining companies – the people revolted against this so-called development by central government. Thus, this remarkable piece of legislation was born of the people taking responsibility for their land.

Other countries, such as Ethiopia, where indigenous rights are recognised and which have a closer relationship with their land, have also put in place similar legislation to help protect their environment. It is interesting that it is the countries of the developing world, the ones to suffer the highest levels of environmental crisis at the hands of the developed world’s corporations, that are the first to recognise the need for planetary protection.

Our laws are built on the premise that we have superior rights to any other species on this planet. It is these ‘superior rights’ without thought for the consequences that have led us to our current crises. It is our laws that have given us the right to take and to pollute so extensively. It is those very rights that have created so much damage expressed through climate change. We have to redress the imbalance, to ensure that the scales of ecological justice are balanced once again.

We need to protect this beautiful planet, and to ensure that such protection is effective and global in application. For that we need the use and support of the law. It is national and international law that will provide the powerful shift in consciousness that is required. After all, “a right that cannot be enforced is not a right at all.” What was once acceptable behaviour – slavery, for example – becomes unacceptable when a paradigm shift takes place in our consciousness.

To implement a Universal Declaration of Planetary Rights is the sensible approach: it would recognise the interconnectedness of all life and give legal protection to all life. In practical terms a Universal Declaration of Planetary Rights would also provide the mechanism and the machinery to correct and address errant and selfish human behaviour towards the environment. It would provide the means and power to redress the balance.

A Universal Declaration of Planetary Rights is of course not the end of the matter: it is but the first step. Just as the Universal Declaration of Human Rights has not given us a perfect world, neither would a Universal Declaration of Planetary Rights provide an instant fix. However, just as the Universal Declaration of Human Rights provided the language, the inspiration and the legal ability for humans to seek redress, so a Universal Declaration of Planetary Rights would provide inspiration and legal ability for other-than-human Earth communities to seek justice.

Like a mighty tree, a Universal Declaration of Planetary Rights would create strong roots to secure the future growth of a solid trunk of rights. Out of this trunk would sprout equally strong branches representing the implementation of national legislation. This is our opportunity to put in place the foundations for a better future for the planet, which is why I call upon you to plant this particular tree without delay.

This is an edited extract from a speech given at the United Nations UK Climate Change Conference in November 2008.

To support the call on the United Nations for a Universal Declaration of Planetary Rights, visit www.treeshaverightstoo.com

Polly Higgins is a barrister and UK Associate of EnAct International, a consultancy specialising in developing and strengthening governance systems that promote ecologically sustainable societies.

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