Myopia - a blight which, if not addressed and eradicated, will surely be the end of humankind as we know it.
As dramatic as this may sound, it only becomes more real the longer we are steeped in paltry conflict and comparatively petty problems - for what is race, gender, corruption, political ideology, if the very earth upon which these differences and injustices occur will soon be inhospitable for many? We’ve seen the devastating effects of our actions on the environment already; Australian bush-fires, freak weather patterns, extinction of species we hardly know existed, and what our leaders seem to be willing or able to do is gather at yet another Climate Change Conference and squabble over trivialities and technicalities, leaving millions - if not billions - of people benighted by poverty, famine, drought, pestilence, and general suffering.
In response to most leaders’ flagrant disregard of and callous, arrogant unwillingness to implement solutions that are indeed, in the short run, difficult and uncomfortable to commit to and enforce, it seems to have fallen to ordinary citizens - children, no less! - the likes of Greta Thunberg, Autumn Peltier and Ridhima Pandey - to assume the mantle of responsibility and lobby for change. While their efforts are certainly laudable, and have sparked a renewed interest in “ordinary” environmental activism, such as banning plastic straws, and being a tad more conscious of one’s carbon footprint, the primary offenders continue their carnage unabated to be let off the hook. The private sector, of which a mere 100 companies have contributed to a stupefying 71% of total emissions since 1988, according to a recent study by Carbon Disclosure Project (CDP) continues to enjoy almost unlimited power and freedom to pollute the environment. Not only do these most pollute corporations go unchecked, they also actively fund and initiate efforts to disrupt the agenda for climate action. One of the world’s largest publicly traded international oil and gas companies for example, used many of the tactics used by tobacco companies to repudiate the correlation between smoking and lung cancer, to convince consumers that climate change was not real, as well as funded climate change denialism. Many major companies lobbied, and continue to lobby against the adoption of renewable technologies, and even infiltrate and influence the regulatory bodies established to curtail them and hold them accountable.
"Private sector, of which a mere 100 companies have contributed to a stupefying 71% of total emissions since 1988, according to a recent study by CDP continues to enjoy almost unlimited power and freedom to pollute the environment."
On average, many developing countries disproportionately have to grapple with the lopsided equation of bringing about climate change on the one hand, and having to make unaffordable investments in becoming greener, all the while trying to develop their economies and infrastructure. This, coupled with exploitation by powerful multinational corporations (MNCs) such asa popular beverage and a food manufacturing company, which for example dump 500,000 tonnes of plastic waste in developing countries per year, severely hampers nations such as our own to achieve the Sustainable Development Goals. Weak legislation and the lack of a cohesive approach to environmental protection and regulations for companies leave us vulnerable to - and responsible for - some of the worst effects of climate change.
It is therefore imperative that small and developing countries such as Sri Lanka
a) Strengthen environmental legislation, and truly commit to a strong and cohesive set of laws and regulations that will govern and dictate our national strategy to deal with environmental degradation and climate change.
b) Recognise the Rights to Life, and Livelihoods as Fundamental Human Rights - which currently are not.
c) Protect ourselves against the manipulative practices of MNCs that wield far more power than even our own governments.
While a step in the right direction, Sri Lanka’s environmental laws are, at best, messy, and at worst, ineffective or even harmful. As Prof. Sarath de Silva puts it, “Sri Lanka’s environmental law is a curious mixture of civil law and common law principles derived from Roman Dutch law and English law, statute law juristic writings and judge made law. As a result, there is a multiplicity of jurisdictions and institutions in the environmental arena.” This multiplicity that results in oftentimes crippling inefficacy, is a recurring theme within Sri Lankan institutions, bodies, and laws - a theme we simply cannot afford to perpetuate when dealing with an issue of such unparalleled importance and gravity as climate change.
"Even if enforceable legal mechanisms are established to prosecute environmental damage, no law that claims to protect fundamental rights can truly do so if the Constitution of the country does not recognise the Right to Life as a Fundamental Right"
A first step towards strengthening Sri Lanka’s legal mechanism would be to amend the Constitution. Article 27/14 states that it is the duty of the State ‘to protect, preserve, and improve the environment for the benefit of the community’. In addition, Article 28 (f) of the Constitution makes it a ‘fundamental duty” of every person to protect nature and conserve its riches’. However, neither of these “duties” are enforceable in a court of law, and neither do they fall under the purview of fundamental rights. While this has not necessarily hampered the pursuing of legal action, such lax and vague legislation within the constitution sets a harmful precedent as it runs counter to any proactive measures Sri Lanka may choose to take, or has taken thus far. Lithuania, for example, whose Environmental Protection Law has placed it at the top of the Environment Democracy Index (a rank of countries according to national laws that protect environmental democracy), provides a streamlined and direct approach for members of the public to challenge the government for violations of environmental rights, along with any environmental information the government may possess being open and accessible to all. While Sri Lanka, comparatively, received a fair score for the Justice pillar we scored poorly on the Participation and Transparency pillars - possibly owing to the fact that this Index was calculated in 2015, before the introduction of the Right to Information Act. Another problem identified with Sri Lanka’s environmental laws is that while there is broad legal standing to file environmental claims, there aren’t adequate legal mechanisms to assist women, the poor, and other minorities in their redressing of environmental grievances.
Even if enforceable legal mechanisms are established to prosecute environmental damage, no law that claims to protect fundamental rights can truly do so if the Constitution of the country does not recognise the Right to Life as a Fundamental Right. The state imposing a duty upon itself and its citizens to protect the environment carries no weight until the Constitution explicitly provides citizens with a right to a healthy and protected environment.
On a global scale, the recognition of environmental damage as “ecocide” - essentially a crime against nature, just as we recognise and prosecute crimes against humanity - is essential. While the idea of charging companies and countries with the equivalent of a war crime for polluting a river or releasing harmful toxins into the atmosphere may seem far-fetched, there is already precedent for Ecocide Law. In 2011, the UK’s Supreme Court used an ecocide bill in a mock trial, and as recently as March 2019, the French Senate tabled a bill that recognised the crime of ecocide. An interesting nuance that could be added to the rapidly developing sphere of environmental law would be to recognise the part criminal law plays into it as well, which would help prosecute companies and countries far more harshly. Another world renowned oil and gas company’s managers, for example, could be considered participants in a criminal enterprise if they continue to flout warnings and rules imposed upon them, as could any member of government who may have indirectly or directly supported their crimes.
"Sri Lanka, comparatively, received a fair score for the Justice pillar we scored poorly on the Participation and Transparency pillars - possibly owing to the fact that this Index was calculated in 2015, before the introduction of the Right to Information Act"
It is imperative that nations such as ours - developing, vulnerable, and yet central to the effort to halt the fatal progression of climate change - take proactive measures, and truly commit to strong and decisive legal solutions. The international community too, by recognising actions that significantly harm the environment as ecocide, must be willing to take far more responsibility and treat climate change with far more urgency. Countries and organisations must lobby for ecocide to be recognised as the grave violation of human rights it is, punishable by by international law.
Self-interest and shortsightedness have no place in a clean and healthy future, and we must wean ourselves of it no matter how uncomfortable - starting now.
If you’d like more information and resources, please visit my blog https://sisterinlaw.wixsite.com/serika.