HOW ONE LAW CAN DISRUPT CLIMATE CHANGE
The key contributors to climate change are the ‘Carbon Majors’. Of the 90 companies identified as the most significant generators of carbon emissions, 56 are oil and gas companies, the remainder are mostly in coal and cement – heavy extractive industries. These greenhouse gas emitting industries cause serious loss, damage or destruction of ecosystems.
The Hidden Story
Our inability to halt dangerous industrial activity is the hidden story behind climate change. Carbon Major industries exacerbate climate change – to such a degree that for Small Island Developing States (for example Pacific and Caribbean islands), the lives and livelihoods of millions of people are under threat. Faced with escalating climate emergencies, it is essential to find a way to hold to account State and businesses so that communities can be protected. Governments have no route-map to disrupt the escalating cycle of carbon – climate chaos lock-in that continues at an ever increasing rate.
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 is State and corporate crime. There is a history, over 20 years ago ecocide crime was at the 11th hour excluded from the Rome Statute as an international crime and from the UN State Responsibility crimes. Today it offers a route to stop the exacerbation of climate change and ecosystem destruction. Ecocide is an international crime not yet in place. Here is a law that will halt stop the destruction of ecosystems and disrupt the cycle of climate crisis, the challenge of our times.
The Governance Pyramid
Some international 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 for ecosystem destruction primarily by fines; remedy for climate change is even weaker, with no remedy in place. The burden is on the individual to sue; whilst there may be a pay-out, business can and do 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 Dark money. Financing think-tanks, corporate lobbyists with State legislators to develop “model bills”; funding climate disinformation and corporate driven agendas.
The top tier, is the tier of Justice; here 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, State sanctioned by non-action. Thus, there is a justice deficit.
From Harm to Harmony
A vicious cycle is 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. Carbon Majors are held to account and prohibited; clean energy is a legal requirement and consequently climate change is significantly abated.
This is justice – for nature, humanity and future generations.