Two distinguished British barristers are campaigning for changes to the global legal system, which would see greater environmental protection and justice for those affected by climate change.

British lawyer and environmentalist Polly Higgins is calling for the UN to accept ‘ecocide’ as a fifth crime against peace, alongside genocide, war crimes, crimes of aggression and crimes against humanity. Meanwhile, a London coalition, headed by Stephen Hockman QC, is proposing an international court for the environment.

The word ecocide is already found in dictionaries but a legal definition would be: “the extensive destruction, damage to or loss of an ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by inhabitants of that territory has been severely diminished.”

Referring to the massive oil leak in the Gulf of Mexico, Polly said that under a new international criminal law of ecocide,BP would be liable to prosecution for the extensive damage caused to ecosystems. “This is a strong incentive not to have such potentially destructive projects in place from the outset,” she explained.

“If such a law existed, policies would change overnight. Investment in damaging energy projects would become high risk,” she suggests, adding: “corporate decision making would shift rapidly from damaging processes towards ecologically supportive practices.”

Polly defines ecocide as a crime against peace because environmental destruction caused by humans can lead to resource depletion, the escalation of which can lead to war, she states.

The advantage of the UN adopting the ecocide proposal is that such crimes could be tried in the existing international criminal court. Under the current framework however, only states can bring cases. The international court for the environment (ICE) would allow individuals and NGOs to be granted standing.

Stephen Hockman, who is regarded as a leading expert on environmental law in the UK, has been developing details of the purpose and function of such a court since 2008, when he first called for the institutional reform. The court would: assert fair environmental rights for all; define and clarify UN treaty obligations; enforce UN environmental treaty law; and resolve international environmental disputes between countries, companies, organisations or individuals.

When Polly and Stephen met earlier in the year to discuss their ideas, they agreed that both proposals compliment each other effectively. Polly’s focus is on ecocide as a crime that interferes with the public: “It is an act or omission that obstructs, damages, or inconveniences the rights of the community.” However, it could also be defined as a breach of a private nuisance, she said. “This then steps into the realm of a civil wrong.” Stephen suggested that ICE would be well placed to hear such cases.

With regards to prosecution, Stephen commented that it would be sufficient for ICE to announce that a party has not complied with international environmental or climate laws. “I would draw back from suggesting that ICE should impose a fine or imprisonment,” he said. “The ruling is the most important thing that will influence opinion around the world.” He emphasised that: “having somebody vindicate a person’s rights is very important,” and confirmed, “compensation would logically follow.”

Polly, on the other hand, believes that: “without absolute liability for ecocide, the legislation would be rendered largely ineffective” and suggested that extensive destruction of the environment should be “actionable against persons.” She said that addressing consequences of actions will also ensure that the focus is placed “on the exercise of preventing the harm, not on the blame of the accused.”

Both lawyers told Positive News they are keen to continue discussing their ideas with each other. Strengthening their campaigns, a report for the UN is due to be published this summer; The Economics of Ecosystems and Biodiversity will spell out the compelling economic case for preventing destruction of the natural world and protecting biodiversity.

Contact: www​.thisisecocide​.com
www​.environmentcourt​.com

Photo: environmental lawyer Polly Higgins
© P Higgins