What Will Your Legacy Be?
When it gets down to ethics versus economy there can only be one winner – and it has to be the right winner – writes the pioneering environmental lawyer Polly Higgins.
There are two terms in law that we rarely hear today: malum in se, which means ‘wrong in itself’ and malum prohibitum, which means ‘wrong because it is prohibited’. There is a crucial difference between the two. The first is a moral premise; the second is a legal one, often based on a moral premise that has been adopted as law. When our laws are built from malum in se, we have the makings of a higher moral code.
The destruction of the Amazon forest and the loss of other primary carbon sinks such as the Canadian boreal forest to the threat of ecocide by corporate activity can all be termed malum in se. Given time ecocide will become malum prohibitum.
When we look back in history, we can see that the ethical imperative ultimately always trumps the economic imperative – the abolition of slavery, the civil rights movement, the prohibition of apartheid. All had one common thread: it was the recognition of the wrongness in and of itself that won the day. Martin Luther King was adamant that civil rights must never be argued on economic grounds: to do so was to objectify the value of black people. By putting a price on their services they became another commodity, which reverted them back to the days of slavery – as ‘things’ to be traded and used to bolster the economy and justify the right of business to determine society’s norms.
William Wilberforce argued the same 200 years previously. Wilberforce maintained that three primary steps had to be taken to ensure that the malum in se of slavery became malum prohibitum: stop the wrong by outlawing it; remove the subsidies; and give new ones to the companies so they would create innovation in another direction. A direction that fostered life and wellbeing, not one that restricted and caused harm to life.
Today we have the same story, only this time around it is the ‘commoditising’ of the planet and ‘ecosystems services’ are the new commodity. Simply by referring to Nature as a service, we are guilty of commoditising the Earth and all who live thereon. We create yet more property rights over Nature, and markets take precedence over the intrinsic value of the land. The very sacredness of life is once again put to the test. This time, it is not human beings but all living beings that are under threat. And by commoditising the very life we are all a part of, we further polarise humans from Nature; through the laws of ownership we become entrenched in the belief that “I own” has superior worth over “I owe (a duty of care to the Earth)”. By creating markets to trade ecosystems services, we reinforce the old paradigm of slavery and ownership.
View the Earth as a living being, and a different worldview evolves; a paradigm in which we take care of our land and recognise the inherent value of life. This is a worldview based on trusteeship and the wellbeing of future generations. It is an approach that comes from the heart, not the head. It is born of a deep wisdom based on belief in the sacredness of life itself.
Creation is the opposite of destruction. Creation is life. We each leave a legacy behind when we go. On a macro level, current climate negotiations are non-legacy-based: there is no consideration for future generations and their wellbeing. The focus is entirely on a fast return of profit, and when it goes wrong, as it will go wrong, a blame game ensues. Very complicated markets are being constructed out of fast-thinning air; dollar signs are being drawn in the sand. Profits out of hot air are being declared. Money speaks, and the voice of the Earth has been silenced.
Those who attend climate negotiations to speak on behalf of the Earth get no more than a bystander role where they are accorded ‘observer status’, yet these are the very people who can help change the paradigm. Instead, businesses count their financial gains and market advantage, not examining the climate from the perspective of restoration, prevention and the advancement of the wider Earth community.
Pause for a moment amidst the noise of the many rushing to profiteer from the carbon markets, and consider this: what precisely is being achieved? Reduction of emissions is not what is driving this machine – making money is. Profit will never resolve the problem at source.
‘Extinction debt’ is a term that means leaving a legacy of loss of species. Through our actions we can either leave a legacy of life-affirming abundance or set the conditions where certain species are effectively doomed to die through lack of assistance. It may take decades or centuries to reach the stage where some species are at the point of extinction; the genetic diversity of others is now so reduced that their comeback is already nigh impossible. The conditions required for this loss are being laid down right now through the persistent use of chemicals and destructive industrial processes that kill life on a daily basis.
The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, along with the United Nations Charter and various other human rights instruments, stipulate our human right to life. The Universal Declaration of Human Rights was not intended to be a legally binding instrument when it was originally created. However, it quickly came to be considered a binding international law and something we think of as a peremptory norm. The term jus cogens is given to norms that reach that status, and it is generally accepted that human rights and the prohibition of genocide, slavery and torture are all peremptory norms that no person can evade. It has now been argued by legal experts (including me) that plundering the Earth violates on several counts the customary international law of the human right to life.
Destroy our Earth, and we destroy ourselves. Take away the very world that feeds us and gives us all we need to live in peace and harmony, and very soon we too will perish. Our right to life is under threat of being extinguished and yet we continue to ignore the signs.
The very land we call our home is sacred. All too easily it is squandered for the profit of a few at the expense of the wider Earth community. Once it is sold off, traded or destroyed, the outcome is usually irrevocable. What could so easily remain in place for many can be lost overnight by dint of a few elites making a decision premised on the economic rather than the ethical imperative. And the fact is that until we close the door to decisions based on financial imperatives and replace them with the supremacy of what is best for the wider Earth community, we will continue to inadvertently cause the death of our world as we know it.
To accept a system as it is – a system that places profit without consequence above all other considerations – is to remain complicit in a system that does not work. We know it does not work, because our Earth is being destroyed at an ever-escalating rate and before our eyes. To stand up and fight for the life of our land and our people is now a moral necessity. To sit back and do nothing has become the default action of so many who accept the existing norm. The time to challenge our norms is now, not tomorrow or next year; remember, just because something is considered a norm does not always mean it is right.
In April 2010 I proposed to the United Nations that a law of ecocide be classed as an international law alongside genocide, crimes against humanity, crimes of aggression and war crimes as a fifth crime against peace. Ecocide is defined as the mass “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”. Territory includes not only land, water and air, but also communities.
In 2008, a staggering 3,000 corporations caused US$2.2 trillion of biodiversity ecocide; the figure for the following year is a rumoured doubling to US$4 trillion. 2010 was the International Year of Biodiversity, and yet the continued destruction of our ecosystems is expected to be exponentially higher: “Our ecosystems are at the tipping point,” says the United Nations; world systems are at risk of “rapid degeneration and collapse”. We need to implement the crime of ecocide to halt the march of the destruction of our ecosystems and impose upon governments a legal duty of care to assist those suffering or at risk of ecocide.
A law of ecocide will create a powerful preventative measure to govern those in positions of responsibility – CEOs, heads of state and heads of financial institutions – and make them all responsible for the decisions that lead to, support or finance mass damage and destruction. In so doing, the protection of interests shifts from the few who enjoy so-called ownership to all those who are at risk of ecocide. And by legally defining ecocide, we can reopen the currently defunct UN Trusteeship Council to put in place an international mechanism based on trusteeship principles and obligations for those communities most adversely affected by ecocide, which has rendered them non-self-governing.
Shifts in consciousness are rarely gradual. Evidence demonstrates that when pressure mounts to a certain point, human evolution experiences a leap in understanding. At that juncture, a shift takes place: a shift predicated on the recognition of an intrinsic value. That shift is then manifested in words and action. It happened when the Berlin Wall collapsed; it happened when we abolished apartheid.
We are standing at a pivotal point in the whole of the history of our civilisation. We are waking up to the realisation that we can make another big shift. We now know that we can end our damage and destruction to the planet; we already have the tools we need to make it happen. All it takes is a simple step to rewrite the rules of the game: we can make ecocide a crime.
Law shapes our societies, our way of thinking, our behaviour. By imposing upon Nature the concept of it being ‘property’, legal systems have legitimised and, worse, encouraged the abuse of Earth by humans. Traditionally, our laws have been built on the premise that humans have superior rights to the planet and it is these laws that have given us the silent right to take and to pollute so extensively. The concept of Earth as a living organism has been forsaken. As a consequence, the imbalance in our ecosphere is now so great it threatens to destabilise all of Earth and humankind. We have to redress the imbalance and bring the scales of ecological justice back into equilibrium. After all, our commonality is the Earth we walk on, the soil that feeds our plants, the trees that provide shelter and warmth, the sun that warms us, and the air that we breathe.
Such is the growing crisis, that we must now recognise the need to protect and to ensure that such protection is both effective and global in application. In other words, malum in se must now become malum prohibitum. For that we need the use and support of laws because, useful and even desirable though a voluntary code is, past experience suggests that leaving corporations to implement them achieves little of true substance. Only by implementing international laws and mechanisms premised on our shared intrinsic values will we embed the recognition of the inherent rights of Nature and create the powerful shift in business (and consciousness) that is needed right now to turn our world around.
A friend once said to me that it is “only when we face the shadow self and give it a name that the healing can begin”. By naming the destruction of our Earth as ecocide we can start the process of building a new world based on intrinsic values: values that hold life as sacred for all who live on this Earth. When we do this, we really will begin to create an economy that places the care of our homeland first. That, after all, is the true meaning of economy.
This lifetime is the one where civilisation can leave a collective legacy for future generations. By standing strong and calling on others to walk forward with us, without fear and with the determination to leave a better legacy for the Earth community, wherever we live, soon and just like a giant patchwork quilt we will embrace the whole of the world.
This is our new moral and ethical imperative and we each have a role to play in making it happen.
So I am asking you, all of you, to join me in creating a legacy we can all be truly proud of.
You can support Polly’s work at www.eradicatingecocide.com
Polly Higgins will be speaking at the Resurgence summer camp, 26 –29 July 2012. For more information and bookings: www.resurgence.org/summercamp