Ecocide law: A fresh approach to business ethics
This series of guest blog posts is intended as a dedicated space for the many movements/campaigns around the globe confronting ecosystem destruction to share their stories, narratives and perspectives.
This guest blog was authored by Punya Bhargava, an advocate and founder of the Corporate Social Responsibility firm Huā.
As a person of Indian origin who grew up in China and studied in Canada, my exposure to diversity and alternative thought shaped my worldview into what it is today. I recognise that I must use whatever resources, privilege and tools I have at my disposal to bring the voices of disproportionately marginalised members of society to the forefront of policy and corporate ethics structures.
That is why I took the leap of beginning my own corporate social responsibility (CSR) firm, Huā, at a young age. My motivation emanated from the defining issue of our generation - the need to urgently confront the triple planetary crises we are facing: climate change, biodiversity loss and pollution. But, to a large extent, fiduciary responsibility - the obligation that businesses possess towards their shareholders - still trumps their CSR/ESG policies.
An example of a scenario that companies face daily might look like this: a mining company in Australia faces a choice between safe disposal of the tailings (waste product) from its gold mines, or doing nothing and allowing its release into the local environment. Without safe disposal, the mine tailings, including substances like arsenic, mercury and cyanide, would be released into local waterways and build up over years, wreaking severe havoc on ecosystems and potentially poisoning the water supply for local communities. But safe disposal is costly and eats into the company’s profit margin.
‘Gold mine, Western Australia. Credit: Chris Fithall/ Flickr Creative Commons.’
Would the company’s CSR policy, which promises to safeguard the environment and support local communities, persuade the company’s top decision-makers to make the responsible choice? In the vast majority of cases, the answer is no. Corporate shareholders and in turn the decision-makers who act on their behalf, hold a legal status called limited liability, meaning that individuals are shielded from individual accountability, including personal financial losses. The company’s fiduciary duty to shareholders is therefore the prime consideration. If the responsible choice costs more, the financial incentive trumps the ethical one.
But what if a new decision-making factor was introduced into the equation, one that created individual liability for those at the top of the decision-making chain?
Ecocide legislation makes the most grievous harms against nature a criminal offence, meaning that the controlling minds in corporations or governments can be held legally accountable.
Ecocide law will allow businesses that pursue sustainable practices to flourish by levelling the playing field for them. Right now, without accountability for environmental harms, businesses perversely receive financial rewards for decisions that lead to mass environmental damage. In contrast, ecocide law will rebalance the scales in favour of sustainable practices by thoroughly deterring these practices through the prospect of individual accountability.
The potential of ecocide law is not just evident to me, however, nor just to a small group of supporters. The ecocide movement is rapidly expanding and entering the mainstream. In the past year alone, a domestic law of ecocide was passed in Belgium and the European Parliament voted through a revised Environmental Crime Directive, criminalising cases that can be ‘comparable to ecocide’. Additionally, ecocide bills have been proposed in the Netherlands, Brazil, Peru and Italy. Most crucially, three Pacific Island states, led by the Republic of Vanuatu, have now submitted a formal proposal for a crime of ecocide to the International Criminal Court (ICC), meaning that the issue is firmly on the agenda of all ICC member states.
The CSR/ESG field is only as strong as the moral and legal red lines that society puts in place. Without criminalising mass environmental damage we not only allow it to go unpunished, we send a message that it is morally acceptable. There are no more excuses, there is no more room for brainwashing, greenwashing and for the politics of distraction. It is essential that we work together and raise our voices, wherever we have the opportunity, and call for a standalone international crime of ecocide.