Corporations
and the military, consumers and environmentalists, ecocide and ENMOD. A rum mixture indeed
Why
will the corporate champagne corks be flying?
In
the ultimate analysis, the expedient necessary to effectively address
our multi-facetted ecological crisis is nothing less than a paradigm
shift in the relationship between mass society at every level on the
one hand, and the natural environment on the other. This is what the
criminalisation of ecocide is intended to bring about, and it is
primarily designed to do so by impacting directly on corporations.
The
requisite response calls for a complete revision of corporate values,
and we can see from the
extract from the book that is fully understood. Corporations
would be required to act responsibly in an ecological sense in any
circumstance where this legal measure might impact on them. In
essence they must cease to cause 'widespread long-term and severe
damage to the natural environment' or face the power of the law.
Yet
if we are truly honest, we must admit that corporations only do these
things because they are profitable; and that they are only profitable
because consumers avidly buy up more or less everything they produce
quite regardless of the impacts on the environment, tragic though
this unpalatable truth may be.
Impacts
which they are by now fully aware of but actively choose to ignore.
Or discount. Or deny.
You
can argue about who is leading who, but ultimately ecocide and almost
all other ecological destruction and degradation occurs as a result
of the direct and indirect actions of consumers, who are the ultimate
villains of the piece and, as the argument for criminalising ecocide
goes, villains of the peace also.
This
explains why environmentalists have achieved so very little.
Unwilling to make significant changes in their own catastrophically
unsustainable lifestyles, in essence they are asking governments and
other authorities to save them from themselves. Their principal
strategy, employed more or less ubiquitously, it to call on
governments to legislate to compel everyone else to do what they as
individuals are not prepared to do of their own volition.
Clearly
this is politically bankrupt, and they cannot expect politicians or
anyone else to take them seriously. Or at least ought not; though in
practice they do, and take themselves very seriously indeed, while
expecting everyone else to also. It is strikingly curious
manifestation of the uniquely human, uniquely civilised capacity for
self-denial.
A
part of the reason the environmental movement is failing so
comprehensively in its central aim - assuming that be to protect the
environment - is because its leadership will not articulate this
essential truth to its membership for fear of alienating them,
instead prioritising the flow of funds needed to persist in being
ineffectual over the risks inherent in attempting to catalyse the
unavoidable, but challenging and often unpalatable, changes necessary
before they become impossible to deliver, as very shortly they will.
By so demurring, the vicious cycle continues entirely uninterrupted.
One
thing we know for certain that corporations are exceptionally good at
is divesting themselves of activities which cease to be profitable in
very short order - as countless victims of redundancy, retrenchment
and outsourcing can personally testify.
All
that is necessary is for people to stop buying the stuff...
Hence
the ultimate purpose of criminalising ecocide is to engineer that sea
change in behaviour, and in the societal attitudes from which it
results. In short, it is to wean society off of its dependency on
consumption, which means breaking the psychological addiction to
consumerism which is ubiquitous in mass culture.
It
has to be, as this is the only expedient which will - or can possibly
- deliver us from our fate, a fate which is currently inexorable.
This
change in societal values is expected to trickle down as a
consequence of a change in corporate values and consequent behaviour.
Clearly once corporations have to cease carrying out the activities
giving rise to ecocide, the flow of the products derived from them
has to stop. So society at all levels will have to go through a
fairly radical transition and must learn to be content with what can
be produced without causing ecocide as defined as a crime against
peace - which it is hoped will approximate to what can be produced
sustainably - and no more than that. In practice people would be left
with no other choice. Arguably they have no other choice anyway - if
it doesn't happen voluntarily, it will inevitably happen fairly soon
as a result of ecological collapse and resource depletion.
So
far so good. What, then, is the problem?
It
is that what is currently proposed does not call on corporations to
behave responsibly - tragically it does exactly the opposite. In
trying to examine this, things start to get a little Neptunian, as
one runs into something of an information vacuum. Unfortunately this
has to be negotiated nevertheless, which will be done as briefly as
possible.
The
primary source of information on what has been proposed is the
Eradicating Ecocide
website. This has been well designed to set out the case zippily for
lay people, concentrating quite rightly on the practicalities and
snappy expositions. Unfortunately what it lacks is the actual
proposal submitted to the UN, which comes as something of an
impediment for anyone who doesn't happen to do politics of the
facebook variety and prefers to read what they are being asked to
support before signing up to it. Presumably this is merely an
oversight which can be swiftly corrected.
Trying
it from the other end, the Guardian
tells us that the proposal was submitted to something called ‘the
UN Law commission’,
a body which unfortunately does not appear to exist either on the UN
website or anywhere else searched by the google engines. One presumes
the Guardian must be referring to the International
Law Commission, but one draws a blank at that body's impenetrable
website too.
Hence
for the detail of what has been proposed we are left to rely on the
extract from Chapter
5 of the book on the Eradicating Ecocide website, which by design
or serendipity happens to quote the key definitions. Here ecocide is
defined thus:
'the extensive destruction,
damage to or loss of ecosystem(s) 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.'
and
the crime of ecocide in the following terms:
‘widespread long-term and
severe damage to the natural environment which would be clearly
excessive in relation to the concrete and direct overall community
advantage anticipated’
We also learn that the wording
used in these definitions was adopted from the 1977 United Nations
ENMOD Convention (or Convention on the Prohibition of Military or
any other Hostile Use of Environmental Modification Techniques to
give its full title, also known as the Environmental Modification
Convention for short).
The
book then states that:
‘ENMOD
'specifies the terms “widespread”, “long-lasting” and
“severe” as
'“widespread”:
encompassing an area on the scale of several hundred square
kilometers; “long-lasting”: lasting for a period of months, or
approximately a season; “severe”: involving serious or
significant disruption or harm to human life, natural and economic
resources or other assets.'
Unfortunately
it does not. The
ENMOD Convention is a very simple document contained in just a
few pages. What it does not do is define any of those terms.
We
can be reasonably certain of this as when the good people from Turkey
came to sign the Convention in 1977 they had the prescience to
formally reserve their position thus:
"In the
opinion of the Turkish Government the terms ‘wide-spread’, ‘long
lasting’ and ‘severe effects’ contained in the Convention need
to be clearly defined. So long as this clarification is not made the
Government of Turkey will be compelled to interpret itself the terms
in question and consequently it reserves the right to do so as and
when required.
"Furthermore,
the Government of Turkey believes that the difference between
`military or any other hostile purposes' and `peaceful purposes'
should be more clearly defined so as to prevent subjective
evaluations."
One
does not want to make a big thing of this. The proposal to the UN and
the book were put together more or less single-handedly by Polly and,
rising to the urgency of our predicament, in a remarkably short
period of time. In that sense it represents a magnificent
achievement. If, in the course of it, a small error crept in
somewhere between drafting and editing, quite possibly in an effort
to make a complex (and to many, arcane and potentially terminally
tedious) legal matter both comprehensible and interesting to lay
readers, it matters little provided it is not material.
So
for the sake of argument let us proceed on the assumption that at
some time during the three decades that have passed since ENMOD was
drawn up in 1976, somewhere amongst all the meetings, resolutions,
decisions, cases, precedents or whatever, these definitions have
acquired force of law as stated, and that the means by which this has
happened will be clarified in due course.
The
fatal mistake is the one which follows on consequentially:
'These
expanded definitions, which are already embedded in international
laws of war, offer an existing basis upon which the international
crime of ecocide can be seated at the table of the ICC. The word
‘ecocide’ bestows the missing name and fuller comprehension of
the crime of unlawful damage to a given environment. As a crime that
is not restricted to the confines of war alone, the categorisation of
ecocide as a crime against peace is appropriate. Thus, for the
purpose of defining ecocide ‘damage’, determination as to whether
the extent of damage to the environment is ‘widespread, long-term
and severe’ can be applied to ecocide in times of peace as well as
in times of war….'
In
lifting the definition of the crime of ecocide straight from the
ENMOD Convention, instead of giving an absolutely unequivocal signal
that corporate actions which cause significant damage to the
environment are absolutely unacceptable, instead exactly the opposite
signal is given.
What
is being proposing is that corporations can quite lawfully cause
equally as much ecological damage and destruction as
the absolute maximum permitted to a nation in the most dire straits
imaginable in wartime.
Equally
as much as military forces on the very brink of annihilation,
surrounded by carnage and destruction on every side, fighting to
defend the very existence of the state, possibly to save its peoples
from all manner of atrocity, for very survival, and on the point of
loosing all of that and life itself.
By
corporations. In peace time. Merely to provide a better return for
their shareholders. Entirely lawfully.
Once
that is recognised, does it make sense to anybody?
Is
that what we wish to see? Is that the message we wish to send to
governments globally? To society? To corporations? Is that the change
which is going to make the decisive difference between an ecological
renaissance and auto-destruction?
It
is best to put this in context. As a concept, criminalising ecocide
is brilliant. Properly executed, it is an expedient which is
critically necessary if we are to traverse the immediate future and
emerge with at least some hope for what comes after. Just as
important is that it is one of the very few which can be delivered
under the system of governance which currently prevails, and quickly
enough to stand a chance of making a meaningful difference. Other
deliverable alternatives are vanishingly few.
The
tragedy is that the delivery that has been proposed is fatally flawed
as it currently stands. It is understandable why this has happened,
and it has occurred for the best of motives.
For
the reasons that have gone before it must be obvious that the
proposal to criminalise ecocide represents a radical change in
society and a radical challenge to corporate power. In proposing such
a measure, it is natural to try to nuance it in such a way as to give
it the best hope of reaching fruition. Under such circumstances it is
a infinitely safer strategy to argue for the extension of an existing
measure to new areas, than to propose an entirely new one that would
undoubtedly run into serious controversy likely to jeopardise
progress, if not the entire project.
A
second reason is that by employing law that has already been
established, one avoids the risk inherent in entirely new measures of
succeeding in securing their passage through the political process,
but failing in the objective because the terms employed somehow do
not hold up when tested in court.
Nevertheless
it is unavoidable to conclude that in this case, the mistake made
over the definitions employed will lead to inevitable failure,
because instead of giving the required signal to society and to the
market, it will have exactly the opposite effect to the one intended.
One
does not have to be around environmental lawyers for very long for
the projections to evaporate, just as they do with the medical
profession. Whatever the nobility of the motives for entering this
field of law may have been and may even remain, it quickly becomes
apparent that in practice most environmental lawyers devote their
lives to advising their corporate clients on how to maximise their
negative ecological impacts whilst remaining within the letter of the
law. In other words, how to maximise the ecological damage that they
cause without getting prosecuted for it. It is inevitable and
entirely rational that corporations should behave thus, and should
employ environmental lawyers to those ends. And as they are by far
and away the main clients, it is also somewhat inevitable that
environmental lawyers should end up serving such a master, short of
dedicating themselves to something higher than purely material
affluence.
It
is an a more or less inescapable consequence of passing environmental
regulation that corporations will expand their environmentally
destructive activities to the maximum permitted within the law. This
happens for two reasons, both of which are entirely rational
responses to the system as it exists.
The
first is that the primary legal obligation upon directors is to
maximise profits on behalf of shareholders. In most circumstances
this places them under a duty to avail themselves of any lawful
opportunity to cut costs and so maximise profits. Obviously it is
always less costly to commit environmentally damaging actions than to
mitigate them, provided it can be done lawfully so the business
responsible is not going to end up in court facing fines and clean up
costs. Note, though, that even when it does it may still be the
rational choice provided those costs amount to less than the saving
made in operating costs, or if the risks of a successful legal action
against the corporation are small enough to objectively justify the
risk.
The
second is that to maximise profits, corporations must out-compete
their rivals. So two things can happen. A business may seek a
competitive advantage by reducing the costs of mitigating its
environmental impacts: as a consequence of becoming dirtier than its
competitors it is able to undercut their prices in the market and
increase market share; also by becoming a better proposition to
investors as a result of its improved competitiveness and
profitability it can improve its capital position, which can then be
employed to relative advantage. Alternatively if a business does not
take the lead in this way, it will normally be compelled to follow
down the same route anyway in order to remain competitive with rivals
who are not so environmentally scrupulous.
Thus
it is almost inevitable that when regulations are set corporations
will take up any slack they are allowed. With very few exceptions it
is an entirely predictable and perfectly rational response that they
do.
For
those reasons, exactly the same response can be anticipated to the
criminalisation of ecocide under the terms currently proposed. To the
extent that they can control their impacts, corporations will expand
the scale of their operations to the maximum allowed under the terms
lifted from ENMOD, after allowing what they will evaluate as an
adequate margin for error, carefully calculated using risk assessment
techniques. Where an activity would exceed the astonishingly generous
spatial limit proposed, the response will simply be to carve it up
into a number of discrete projects, judiciously separated in time and
space, so that each one remains lawful under the ecocide measure.
Clearly
this is the very opposite of what is required, and what is demanded
in response to our plight. It will not curb corporate excess, or to
the extent that it does so, it will only do so marginally. The flow
of environmentally destructive products and services will continue
more or less unabated, so consumer behaviour will continue just as
self-destructively as before.
As
a concept, the criminalisation of ecocide is essential. In the form
it has been proposed, it is a dream come true for the corporate
world. To grant corporations exactly the same rights to 'modify' the
environment as military forces at war is an astonishingly misplaced
idea, and the very opposite of what is called for.
Perhaps
it is easy to overlook that the defining purpose of the military is
to kill and maim in large numbers and to destroy physical matter of
all descriptions - including ecologies - on a vast scale when
considered necessary, and often quite indiscriminately.
In
most cases it does so entirely lawfully - at least under the dominant
legal system which prevails, Iraq 2 being an exception. It should not
be forgotten that the law in this respect is so powerful that members
of armed services may find themselves legally compelled to carry out
the most horrendous acts absolutely against their conscience and may
possibly face death - lawfully executed - for failing to do so.
Why,
then, are environmentalists campaigning to hand corporations the
implied right to cause equally as much environmental damage, in
peacetime, just to make a profit?
The
scale on which it is proposed that this be allowed is also
stupefying. Allowing corporations the right to destroy the
environment on an equivalent scale to military forces appears
particularly misconceived (unless you are a shareholder and care for
nothing other than your own wealth and comfort, in which case it may
seem a splendid idea). The effect will be to legitimise ecocide on a
scale that is anything less than 'hundreds
of square kilometres',
whatever that may mean. The term was almost certainly deliberately
ill-defined in relation to ENMOD (assuming that to be its source) for
reasons of diplomacy, to allow enough wiggle room so that
perpetrators could be allowed to evade sanctions where that is
thought to be politically or strategically expedient. Just as with
existing crimes against peace – Augusto Pinochet walked free;
Saddam Hussein didn’t.
Acts
as outrageous as the bombing of Dresden and the battlefields of the
Somme would probably be entirely legal under the terms ascribed to
ENMOD. To propose the same, entirely unbidden, for corporate acts
seems to be an own goal of gigantic proportions. Spatial limits are
really not difficult things to define more precisely.
The
ultimate tragedy is that had corporations been invited to name their
own terms, they would never have dared to have demanded nearly so
much.
Certainly
not equivalence with the military, not out of fear, but certain
knowledge of the public opprobrium they would draw down upon
themselves. Or at least they would not have done openly - what
happens behind closed doors is a secret known to very few.
Yet
this being handed to them on a plate: that corporations can cause
equally as much environmental damage as the military. Voluntarily and
entirely spontaneously. As a gift from the blue by its opponents, in
a well-intentioned effort to curb the very thing it will encourage.
That
is why the champagne will be flowing royally in corporate boardrooms
up and down the globe. In some circumstances it seems you just can't
loose.
Thankfully,
though, the situation is not irretrievable. It merely calls for
better conceived terms to be substituted. A discussion of that must
wait for another occasion.
More
generally it calls for some serious work to be done on the
translation into policy before this campaign is taken further
forward. Properly framed, the criminalisation of ecocide can make a
critical difference in reshaping society, and that is what must now
be delivered.
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