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Ecocide – big business should take note

I read a fascinating article recently by Polly Higgins (an environmental lawyer) in the Royal Society of Arts journal.  We are all used to the term genocide now and there are international courts to deal with those who are deemed responsible for this crime against humanity.  Polly argues that there is a very strong legal case for establishing the principle of ecocide; crimes against the planet, which of course belongs to the entire human species.

The genocide legislation supersedes all national laws, creating a globally enforceable legal principle that certain acts against persons must be tried and those guilty brought to justice. In the same way, crimes against the planet, on a large/industrial scale, have such a global impact that the ecocide principle would always supersede national laws.  This will protect the planet for everyone.

Whilst the genocide laws target the leadership of countries and their military, holding them to account for their crimes against humanity, any ecocide laws are likely to have a different target – companies and corporations.  Unlike crimes against humanity, crimes against the planet are generally a result of the pursuit of profits by companies, irrespective of the long term environmental and social consequences.  All too often companies will say that the long term environmental and social consequences of their activities are the responsibility of government, whilst they, the companies, are only accountable to their owners – the shareholders.  For this reason, it can often be very difficult to hold corporations to account, especially when national legislators are lobbied constantly by the same corporations to provide a “business friendly” environment.  Politicians are only accountable to the people once every 4-5 years, but they are lobbied daily by big business so it is no surprise that short term greed can drive policy rather than long term environmental and social benefit.

Polly’s article has a very sobering and quite upsetting statistic – in 2008 the top three corporations in the world caused $2.2trn worth of environmental damage and destruction.  This was justified buy the legal requirement of the companies to maximise profits – to cause less damage would cost more money, reduce profits and as a result the corporations’ directors might be sued by the shareholders for not meeting their legal duty.

A law of ecocide would act as a check in the Boardroom and, rather perversely, actually protect the directors of companies against legal action from shareholders.  The directors would still have the legal requirement to maximise returns, but they will only be able to do this via legal activities and if mass environmental destruction were a crime, prosecuted in a global court, the directors would have to abide by the law.  In the same way as drug dealing might be profitable, shareholders cannot force the directors of a public company to move into that area just because it is profitable.  Ecocide legislation would act as a brake on the worst excesses of big business.

At the moment a company in the extractives industry can eye up the potential resources in the Arctic or Antarctic and assure everyone that they have robust mechanisms to avoid pollution.  Then, when the ‘impossible happens (like BP’s 2011 ‘problem’), the companies hide behind their permits and are generally immune from costs other than for possible clean up operations.  The problem is that the damage has been done.  If however, the directors knew that there existed an ecocide law to which they would be liable if the ‘impossible’ happened, it might well temper their enthusiasm for trying to extract from pristine and globally important places.  If they get it wrong, all of the national permits will count for nothing and the directors will be liable to the higher court – the ecocide court.  This is just one example, but I think it would work to protect the planet over the long term for all of us.

We all need this law, the sooner the better.

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