HOW ONE LAW CAN DISRUPT CLIMATE CHANGE
Firstly, a key fact.
The key contributors to climate change are the ‘Carbon Majors’. Of the 90 companies identified as being the most significant generators of carbon emissions, 56 are oil and gas companies, the remainder primarily being coal and cement companies – all are heavy extractive industries. These heavy extractive industries emit greenhouse gases from activities that cause serious loss, damage or destruction of ecosystems. Other industrial activities that have an additional secondary adverse carbon impact, for example deforestation, destroy not only valuable carbon sinks (the habitats where carbon has been safely stored); they also contribute to carbon displacement (through their removal, which in turn often paves the way for extractive industrial activity).
Secondly, the hidden story.
Dangerous industrial activity is the hidden story behind climate change. Carbon Major industries exacerbate climate change – dangerous industrial activity that destroys ecosystems and generates excessive carbon emissions to such a degree that for Small Island Developing States (for example Pacific and Caribbean islands), the very lives and livelihoods of millions of people are under threat. Faced with escalating climate emergencies, finding a way to disrupt the cycle and hold to account State and business officials so that frontline communities can be protected is essential. Especially when governments have no route-map to disrupt the escalating cycle of carbon lock-in that continues at an ever increasing rate.
Thirdly, the law.
There is missing law: ecocide crime. Ecocide is “loss or damage to, or destruction of ecosystem(s) of a given territory(ies), such that peaceful enjoyment by the inhabitants has been or will be severely diminished.” See the draft Model Law here.
Ecocide crime has a history. Over 20 years ago ecocide crime was at the 11th hour excluded from the drafting of the Rome Statute as an international crime and from the drafting of UN State Responsibility crimes. Today it still offers a strategy to stop the exacerbation of climate change and ecosystem destruction. Ecocide crime is State and corporate crime.
Ecocide is an international crime not yet in place. Here is one law that will halt escalating emissions, stop ecosystem destruction and disrupt the biggest challenge of our times, our looming climate crisis.
THE GOVERNANCE PYRAMID
Currently ecosystem destruction and climate change is governed by first and second tier governance: voluntary ‘soft law’ provisions and trade and commerce provisions.
In an international context, some examples are the Paris Agreement, Millenium Development Goals’s, Sustainable Development Goal’s and UN Global Compact. All are based on good faith. Yet, when climate change and ecosystem destruction occurs, there is no recourse at the first tier. The second tier of governance provides limited remedy, primarily by fines. The burden is on the individual to sue; trade and commerce are ultimately protected. Whilst there may be a pay-out, business can remain operating. Where there is a court declaration of State obligations, enforcement is limited. E.g. Urgenda Foundation v The State of the Netherlands; citizens sued the State for taking insufficient action to keep Dutch citizens safe from dangerous climate change. Climate litigation cases have tripled since 2014. As the UNEP climate-change-litigation report highlights, civil litigation provides limited remedy.
An added layer of weak governance is the movement of unaccounted-for money. Dark money finances corporate-funded think-tanks. It specialises in bringing together corporate lobbyists with State legislators to develop “model bills”; to advance climate disinformation and corporate donor-driven agendas. An opaque financial world hides pay-offs in other ways; where trade is illegal in one country, often cross-border transactions “legitimise” permits in return for pay-offs.
Limited remedy for ecosystem destruction currently falls within civil law; remedy for climate change is even less, with no effective remedy yet in place. The top tier, however, is the tier of Justice; to protect society, the State is obligated under criminal law to prosecute alleged offenders. Individuals are held to account in a criminal court of law at a State level and for 124 States, at the International Criminal Court. This is where there is missing law – without a crime of ecocide, society remains unprotected, climate change and ecosystem destruction remain driven by dark money and are State sanctioned by non-action. Not all States, however adhere to the wider principle of universal jurisdiction, nor to the recognition of the duty to protect ecology.
Thus, there is a justice deficit.
From harm to harmony
A vicious cycle is thereby hermetically sealed in place; loss, damage or destruction spirals upwards to climate crisis, climate refugees and displacement of hundreds of millions. Soft law and trade and commerce provisions do not and cannot stop climate change.
A new cycle – a virtuous cycle – can be established: Earth protection becomes the overriding priority. Migration with dignity for the climate displaced becomes an international duty. Carbon Majors are held to account and prohibited; clean energy is a legal requirement and consequently climate change is significantly abated. Regeneration will be legally prioritised. This is justice – for nature, humanity and future generations.