by Polly Higgins, reposted from Eradicating Ecocide Global Initiative, May 13, 2014
Creating a Legal Duty of Care
Lawyers use the term ‘duty of care’ when there is a fiduciary duty owed, often a duty owed by a trustee or a board member to an identified beneficiary or group of beneficiaries. In fact there is a whole body of law known as Trust law. The trustee is given legal title to the trust property, but is obligated to act for the good of the beneficiaries.
Another area of law that applies trusteeship is childcare provisions. This makes sense – we cede our overriding right to service our needs and instead put the interests of the child first. What we have is a relationship with our child (trusteeship law is about putting the welfare of the beneficiaries first); we do not view them as tradeable commodities (property law) there in service of our needs. As such, where children are traded or harmed we view that as a crime. The purpose of creating laws that put the interests of the child first is to govern our relationship between ourselves as primary carers and the children we have in our care. Whereas if we treat our child as piece of property, in the legal sense, our rights over the object (the child) would be absolute. As you can see, the word ‘care’ brings with it duties and responsibilities. In fact a ‘duty of care’ refers to the sanctity of the relationship between the the trustee and the beneficiary – as opposed to one party putting self-interest first.
I flag this up because all too often I hear so many saying all we need do is create a system that puts a price on nature and we shall be okay – ecosystem services is one example. For me, this is a narrative that does not stack up. Who stands to benefit here? The land or air that is being traded certainly does not, nor do the communities that have been injured. It’s akin to putting a price on harming a child. But more than that, it allows the cycle of harm to perpetuate regardless of whether or not it is human caused or naturally occurring. Because we have no legal duty of care, what power do we have to act? Very little indeed. Instead we do a calculation: how much for loss of countless Small Island States that are at threat of going under water? How much to destroy our forests and how much to pollute our water?
Yet, caring for life comes from the nurturing of a relationship, not the placing of a price tag. The right to life is priceless – what we are talking about is the very sacredness of life itself. Once a Small Island State goes under water it’s gone, and no amount of money will bring back the land, the community, nor the sense that this was once home for those who lived there.
A law of Ecocide creates a duty of care – a duty owed collectively by humanity to the Earth. Under a law of Ecocide, any territory at risk of or suffering significant harm shall be assisted first and foremeost from a place of trusteeship. The primary determinant is what assistance is required, not how much it will cost. In essence, our values become aligned with our belief in the most sacred duty of all: our sacred trust is our care for the well-being of Earth itself.
Everything we choose to do in life has consequences. The consequences may be successfully hidden (such as child abuse) but the problem is that the harm it causes remains at large. Just because it is not out in the open does not mean it is for the best. A violation has occurred, even when no-one else knows. In fact, the deceit still plays out at a hidden level. At some point we have to face the pain and acknowledge the role we have played in creating it.
So how does this play out at a corporate leadership or governmental level? At the moment we have an absence of law to govern decisions at a leadership level; decisions that can have significant adverse consequences for many, both directly and indirectly. Yet, although we have accountability for causing harm to a human (hurt a child and the law can step in) accountability for causing significant harm to communities (or the inverse; failing to take action) has yet to be codified in law. A legal duty of care for those whose territories have been or are at risk of being destroyed simply does not exist. Yes, we have a whole spectrum of approaches – from voluntary measures, treaties, conventions and protocols – but if any of these are breached (and many of them are) there is very little a territory that has been harmed or community that is at risk of being destroyed can do. There is no legal duty of care existing at a superior level to prohibit decision-making that a) causes harm or b) avoids taking action. Yes sometimes you can sue, but suing does not prevent leaders from making decisions again and again that lead to the harm escalating. However, it is the absence of leadership crime – how we govern the conduct between leaders and the decisons they make on behalf of society – that disempowers us. The very absence of an overriding duty of care serves to re-enforce the acceptance of harm as being normal, which in turn re-enforces a flawed belief that all is fine.
Language of War
Over the weekend I played the Samurai Game – a powerful analogy of how we conduct our lives and make decisions for the collective whole. Winning a war comes at a price – but even war cannot be justified in financial terms; the true cost is in loss of lives. Our conquering of our land, sea and air has already cost us the loss of lives – of humans and non-humans.
Is it possible that instead of being at war, peace can come come in it’s place? To do that it takes more than writing a new story, it takes governance from a very different place – from a place of trust, not control – and a heart-felt desire to end the conflict.
For me, governance that comes from the heart can only take us to a place of peace. It’s a huge step – it calls on us to view ourselves as trustees – ceding our right to take as we like without consequence. It’s about taking responsibility for our actions at all levels, small and large.