Could an Ecocide Law Actually Make Corporations Responsible?

It can sometimes seem to outsiders such as me, that when company board rooms discuss their responsibilities to society it must resemble the scene in The Godfather when the mafia boss, seeing that the family need to move with the times and start dealing drugs, decides to "keep it respectable" by not selling them outside schools or to their own people.

Not that Corporate Social Responsibility is useless. Almost by definition CSR is invisible when it works. It's difficult to Google the companies not linked to the Rana Plaza disaster, who are not implicated in paramilitary death squads or who are not in hand-to-hand conflict with either indigenous people or eco-warriors, but they do exist. Some of those just haven't been caught yet, but others may actually be doing good work.

Looking at the performance of CSR in general though it appears to me that there are more successes in the field of human rights than the environment. Why that should be is an interesting question.

When CSR works, and when it doesn't.

CSR claims to be a profession. However although it has some unique quirks, such as an impenetrable vocabulary and dizzying number of awards, it is not self regulating.  To work in CSR is to work for a corporation and to obey the corporate rules of  "buy low, sell high, keep your job".

CSR folk have to justify their every move, and even their daily existence, in terms of  profit it, which sounds a fairly soul-destroying way to earn a living.

That's why the unfortunate truth seems to be that no matter how much a corporation wants to 'be good', CSR only appears to work when the pull from inside is matched by a push from the outside.

When the alternative is the locals sabotaging your pipelines or occupying your plants, spreading a bit of peace and love amongst the natives before you build your oil refinery makes a bit of sense. When Greenpeace give you the sort of publicity you can do without by occupying the oil platform you're about to dump into the sea, you understand the wisdom of doing the environmental impact assessment first.

So why does the Human Rights 'push' work better than the environment one?

Possibly it's that the Amnesty Internationals of the world are much better at providing it than the Greenpeaces. Maybe, but having done work for both I'm not convinced.

Maybe child labour tugs at the heart strings of C-team execs better than oiled seabirds, although I doubt personal guilt has much to do with it.

What is a big factor, I'm sure, is the sheer scale of the change needed to become environmentally sustainable.

An oil company that wants to be a good neighbour just needs to spend a bit of more of its cash on community engagement, and bit less on death squads. What comes out of the ground afterwards is still oil. An oil company that wants to be green needs to go out of business and leave the stuff in the earth.

However I suspect the other big factor is that the Human Rights folk have the law on their side.

Corporations and Human Rights

Superficially it may seem rather odd that, nearly seventy years after it was agreed the we have a Universal Declaration of Human Rights, whether it applies to corporations is even up for discussion.

The live issue though is not whether or not corporations should be allowed to kill people - most people agree they shouldn't - but how guilty you are if they only pay for the bullets, supply the Jeep that takes the assassin to the scene of the crime, know about the hit beforehand but don't act or merely make a tidy profit out of the victims demise. These distinctions may seem tricky to lay folk, but they are meat and drink to Human Rights lawyers.

The responsibility of politicians and the military in crimes against humanity was established at
Nuremberg after World War Two. Unfortunately the next round of trials, which put the leaders of German industry on trial for their complicity in genocide and use of slave labour, was affected by the Cold War. Alfred Krupp, whose company had used 100,000 slaves during the war was found guilty, but within three years he had been released from prison and was back in charge of the company. Other business leaders escaped prosecution completely.

As a result it was far from clear whether "we were only making a profit" really was as useful a defence as "we were only obeying orders" and it has taken a lot of time and effort to get to the present situation where we have a set of volunary principles.

Still, that's better than nothing.

International Companies, National Laws

But even where there is a real law, prosecuting multinational companies using national laws is as tricky business.

Global brands can suddenly turn out to be very local when the chips are down. When Union Carbide's Bhopal plant blew up and killed 14,000 people, and when Coca Cola's Columbia plant called in a right wing terrorist group to bump off a couple of troublesome unions guys, it suddenly turned out these were independent local operators and not part of the parent company.

Similarly, just like the Moonshine runners fleeing to the county line, Capital can escape across international borders where the law cannot follow. In Ecuador, the 'Chernobyl' of oil disasters, US oil company Texaco, now part of Chevron, used the country as its dustbin for twenty years. Rather than spend money cleaning up spilled oil, Texaco would just send it by truck into the jungle to be dumped. The result was over a thousand toxic pits scattered across the country.

All that time the profits flowed back to the USA, but when Harvard trained lawyer Steven Donzinger took up the case against Chevron in Texas, the US appeals court told him they didn't have jurisdiction and he'd have to go to Ecudor.

This he did, and remarkably Chevron were finally brought to book and fined $27 billion, but by then they had no assets left in the country. When Donzinger went back to the US and Canadian courts to get Chevron to pay up he was once again told the courts didn't have jurisdiction. Donzinger must now be the only Ivy League lawyer in the world poor enough to claim Social Security.

Even when there are no international borders, and the company is as guilty as a puppy sat next to a pile of poo, things aren't straightforward.  Take the Exxon Valdez disaster, in which a US ship owned by a US company fouled up a pristine part of the US because the Captain was drunk. Exxon spent 14 years fighting the case and eventually got the $5 billion damages reduced to $500 million. Did CEO Lee Raymond dip into his pocket to pay the fine? Of course not, it was paid by the company. In the world of the big corporation bosses get bonuses, but shareholders pay fines.

A Law on Ecocide

What needed, according to Scottish lawyer Polly Higgins, is a universal law aimed at making it a crime to trash the environment that is both universal and which uses the nice simple mechanism of strict liability when determining whether you are guilty or not.

Higgins says she was inspired by William Wilberforce, whose campaigning led to the abolition of slavery.

(Unfortunately for the analogy Mr Wilberforce was an arch-conservative and spent the rest of his days campaigning against giving workers the right to form Trade Unions and the emancipation of Catholics, whilst supporting the oppressive Combination Act and the suspension of habeas corpus. Oh well, another hero bites the dust.)

Although anti-corporate activists like me salivate at the thought of a law that sees CEOs being dragged away in chains, Higgins actually favours restorative justice. That is; you made the mess, you clear it up.

So how would, this work? Well, take Climate Change. At present some of the most profitable companies in the world are extracting a raw material that, when used, produces a gas that is destroying the world. Other industries, from power generation to cement production, are also locked into high carbon use. There are alternatives, from wind and solar power, to carbon capture and electric cement kilns, but they can't complete on cost with oil and coal whilst they are allowed to pollute for free.

A minimum carbon price would solve the problem, but that would effectively mean introducing a global tax on fossil fuels which would need to be introduced, at the same rate, in every country in the world. We just don't have a system of global governance that can do this.

An Ecocide Law, universal and up there with the big four international crimes against peace; genocide, crimes against humanity (such as torture and rape), war crimes and crimes of aggression, could be the answer.

Long tail risks

Corporations do not change because they believe "shareholder value now comes from delivering social value" or because they "recognized that business needs society as much as society needs business" or any of the other slogans that they spout today.  They may do lip service to the idea of a Triple Bottom Line (People, Planet, Profit) but execs may themselves in hard cash, not good vibes.

Assessing short term risks to profits is what businesses are good at. But it is also why we are in this mess.

What we are currently very bad at is long term risks, especially - to deploy my most overused phrase of the moment - long tail risks. That is small risks of big problems, and they are responsible for almost all the disasters that get companies on TV.

Just as selling mortgages to people with no assets must have seemed a terrific wheeze to the banks, right up until the moment they crashed the entire economy, so not wasting time waiting for the supply ship to bring those extra centralisers probably seemed a really smart cost-cutting move for BP, right up until the moment the Deepwater Horizon exploded. Similarly saving a few dollars by moving production to Savar in Bangladesh probably seemed a good move by Benetton, until their labels started showing up in the ruins of Rana Plaza.

Rewarding short term risk taking before the long term effects have played themselves out is a bit like applauding the magician after he's sawed his assistant in two, but before you find out whether he can stick her back together again. If businesses can solve this little problem, and start to spot long term risks before they bite them on the bum, then even the idea of an Ecocide Law could be a huge wild card in the boardroom.

At present it may just be an idealistic lawyer's pipe dream, a risk of a risk, but there is the chance that somewhere down the line that this could become real. Looking into the crystal ball, seeing what harm we've done to the planet so far and what horrors await us if climate change is not stopped, seeing the angry people behind the compliant politicians, who can be sure that one day this law will not become a reality?

CSR to the rescue?

A mock trial in the UK Supreme Court three years ago suggested an Ecocide Law really could have legs.

If it does, crafting the case that pins the Ecocide on the C-suit will be the job of lawyers like Higgins. Getting them off the hook will be the job of the much better paid company legal team. But steering the company in a direction that ensures it never gets near the dock is the job of the CSR officer.

I know expecting you to believe lawyers can save us from the corporate psychopaths is a bit of big ask. I know expecting people who sit in the boardroom, and whose pay cheques depend on not rocking the boat, to save us is an even bigger one.

I wouldn't pack away the climbing harness and the D-lock just yet, but signing up to the campaign is quick and easy and, you never know, it may just work.

Eradicating Ecocide Global Initiative