The scale of biodiversity loss over recent decades is a stark warning that, worldwide, we must deal with the Right to Destroy, a ‘right’ which is implicit in private property law. In pretty much all legal systems today it is implicitly assumed that you have the right to ‘destroy’ (in both the sense of consume or demolish) anything that you own. In most jurisdictions you are free to demolish your house if you wish (but not to build a new one), even though that destroys capital and a public good (housing). The underlying assumption is that you won’t do this because it’s ‘irrational’ to do so.
Our legal systems extend this right to nature with very few limitations – whether its harvesting for consumption or transforming nature into ‘cultivated’ areas.
In the same way that unchecked and unregulated free trade is killing the planet, the right to destroy in private property law is ‘irrational’ (note the word ‘irrational’, it is important in this legal context) when the biggest global risks we all face are biodiversity loss, climate change and the increasing frequency of extreme weather events. Removing the implicit right to destroy from property law would be a real and pragmatic action to help mitigate these severe risks; it is only ‘implicit’ in law because no legal system attempts to prevent such destruction.
Just how much evidence do we need to accept that the right to destroy is ‘irrational’?
We can’t say that the evidence has not been there for a long time, it is just too few people want to accept the reality of what human activity has created. So let’s quickly recap just some of what has been reported over the years.
Planetary Boundaries Model
More-and-more people around the world are now, finally, paying attention to climate change because the planet is more visibly unstable to the urban elite, living carbon intensive lifestyles. Sadly, the lifestyle of the wealthy needed to be impacted before they took notice. When it comes to climate change, the Planetary Boundaries Model gauges the world as being in the Zone of Uncertainty labelled increasing risk.
This same model clearly shows that loss of biosphere integrity is a significantly more imminent risk, we are Beyond the Zone of Uncertainty and in the high-risk area. Yet biodiversity loss is given minimal attention, with mainstream media (MSM) coverage lazily focusing on climate change as the root cause, which isn’t the case. The main drivers are land use (deforestation) and direct exploitation for trade.
Mostly, the MSM sticks to the well-worn coverage of the cute or tragic events happening to an individual species or, more often, an individual animal. When it comes to biodiversity loss, most of the world isn’t even in the (climate) denial stage but simply unaware. For too many, they will think, well this is JUST about animals and plants, so we don’t really care. What they don’t realise is that biosphere integrity plays a significant role in food security, water security and managing air pollution. Which brings me to the second body of work which needs much greater exposure.
Swiss Re Sustainability Index and Report
Firstly, who is Swiss Re? The company’s website states, “The Swiss Re Group is one of the world’s leading providers of reinsurance, insurance and other forms of insurance-based risk transfer, working to make the world more resilient.” This is no ‘greenie’ group!
In September 2020, Swiss Re launched a new risk index and report assessing Biodiversity and Ecosystem Services, which confirmed that a fifth of countries worldwide are at risk from ecosystem collapse as biodiversity declines. Christian Mumenthaler, Swiss Re’s Group Chief Executive Officer, said: “There is a clear need to assess the state of ecosystems so that the global community can minimise further negative impact on economies across the world. This important piece of work provides a data-driven foundation for understanding the economic risks of deteriorating biodiversity and ecosystems. [With this information] we can also support corporations and investors as they fortify themselves against environmental shocks; we can also ensure the provision of stronger insurance services.”
Of the G20 countries, Australia is ranked in second (worst) place, after South Africa, for failing and fragile ecosystems. Yet in December 2021, The Guardian reported that Queensland landholders are clearing the equivalent of about 1,000 MCGs a day, including endangered ecological regions, according to state government data. The state governments data even raises new doubts about the accuracy of Australia’s carbon emissions claims. A perfect example of landowners behaving irrationally and it being irrational for the government to enable this scale of land clearing in Australia.
As the Swiss Re Index confirms, one of the world leading providers of reinsurance can see the ever-growing societal and commercial risk of biodiversity loss.
Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services Report
The IPBES Report (the biodiversity equivalent of the IPCC for climate change) confirmed in 2019 that:
- Direct exploitation for trade is the most important driver of decline and extinction risk for marine species.
- Direct exploitation for trade the second most important driver of decline and extinction risk for terrestrial and freshwater species.
- The primary drive of decline and extinction risk for terrestrial and freshwater species is habitat loss, including land clearing (the right to destroy) for agricultural purposes.
Add to these, WWF’s Living Planet report highlighting we have wiped out nearly 70% of mammals, birds, fish and reptiles since 1970 and the 2018 research published in the Proceedings of the National Academy of Sciences into the biomass distribution on Earth, which among other things showed that 60% of all mammals on Earth are livestock, mostly cattle and pigs, 36% are human and just 4% are wild animals.
There is no better example than this to confirm just how irrational it is to continue to clear land for meat production.
As with climate change, there has been decade-upon-decade of research into unchecked over-consumption of land and resources which has destroyed the web of life we depend on for clean air, water and food.
The evidence was there, it has been ignored and now we are entering the third year of a global pandemic that is zoonotic in origin, triggered by humanity’s lack if interest, understanding and respect for wildlife and the natural world more broadly.
Have we reached a tipping point?
A recent publication may hint that, currently, we have a small window of opportunity. In the lead up to the World Economic Form’s annual meeting in Davos, which was again cancelled due to COVID19, the organisation published its annual Global Risks Report. Each year, to prepare for the Davos conference, the WEF surveys business leaders, politicians and academics about their world outlook – what they are optimistic about and what they are worried about. Many of those interviewed are also attendees of the Davos meeting.
The January 2022 report confirmed, of those surveyed, only 3.7% reported feeling optimistic about their outlook for the world. “Most respondents … expect the next three years to be characterized by either consistent volatility and multiple surprises or fractured trajectories” WEF said. More than 84% of people surveyed are worried or concerned. Those surveyed identified the most severe risks, on a global scale, over the next 10 years to be, 1. Climate action failure, 2. Extreme weather and 3. Biodiversity loss.
Why are these figures so interesting?
- Because this group is filled with the business leaders and politicians who have been some of the main perpetrators and enablers of the unsustainable destruction of land and natural resources.
- These are the same global elites, who, naively, thought they had the capability, resources, political influence to turn this problem around when ‘they’ felt it was needed. Now it seems like they have realised they are fucked, just like the rest of us.
Given the scale of the problem, do we just stick our head in the sand, or do we accept the old normal will never come back and that we must sit in the discomfort and make the necessary changes to mitigate the risks which all life on earth currently faces?
This will mean having to deal with our addiction to consumption, we will need to challenge both business and governments to detox from their addiction to constant economic growth and short-termism. We must deal with the irrational aspects of many of the accepted global systems, because of the scale of destruction they have created and enabled. The dogma of free-trade is irrational, the acceptance of limited liability is irrational and the law’s inherent belief in the right to destroy as part of private property rights is irrational.
If we are ready to make the necessary changes then a good starting point is overturning the right to destroy. The evidence of the scale of destruction provided in the outlined reports shows giving individuals and businesses this right to destroy is irrational. We have decades (and even hundreds of years) of evidence that too few people or companies act rationally for the right to destroy to remain implicit in law.
Private property law and the right to destroy
The freedoms associated with private property include the right to destroy. In doing an initial dive into private property rights and specifically the right to destroy, I travelled back in time to the medieval age and then into old Roman law, from which today’s private property laws are derived. What is interesting is that many of these rights are implicit and not explicitly stated in most legal systems. The right to destroy only exists because no legal system attempts to prevent such destruction. But have too many assumptions been made about the value of these laws and their ability to protect natural capital? Given all the evidence it would seem so.
Private property rights were thought to be a good idea because of the assumption that they would not be abused. These rights assume that owners will always act ‘rationally’ in their own self-interest and not undertake ‘irrational, senseless destruction’. Add to this the more recent assumption of capitalism, which is that owners acting rationally, in their own self-interest, will lead to optimal social outcomes, compatible with public good – evidence shows this is frankly a ridiculous assumption.
Some recent examples being:
These assumptions have become ‘sacred’, despite all evidence to the contrary – inequality, poverty and environmental destruction. Because it is unquestioningly accepted that these assumptions are ‘true’, the outcome is that it is assumed that the state does not need to get involved to make sure owners do indeed behave rationally and in the public interest.
In addition, it is assumed that state monitoring would be ‘expensive’ and ‘invasive’. Given that private property rights and specifically the right to destroy have created so many local, national, regional and global risks, it is irrational that the actions of owners of freehold land are not effectively managed and monitored. That this is just a cop-out is obvious from the fact that all Western countries happily maintain expensive and invasive systems to police the actions of its citizens receiving some form of social support. In today’s world, government excuses along the lines of “it is too expensive to monitor and to invasive to monitor” must be interrogated when it comes to the right to destroy.
Evidence of environmental destruction is everywhere and sustainability, in reality, is currently just a ‘buzzword’ with no underlying legal constraints that would put hard limits on both biomass extraction and destruction of ecosystems for human use. The right to destroy needs to be properly constrained when it comes to nature, or we will all face drastic consequences in the very near future. The costs of not managing and monitoring the right to destroy are much higher.
Of course, it would be difficult to create binding legal agreements both nationally and internationally that constrain the right to destroy nature, but precedents already exist when it comes to artwork and cultural heritage. The 2030 target of protecting 30% of terrestrial ecosystems and 30% of the oceans being currently considered for the post-2020 global biodiversity framework would be a step in this direction, but anything negotiated under the Convention on Biological Diversity is non-binding and we need binding targets and binding limits.
If we want to maintain a societal model with widespread private property rights, then the right to destroy the environment needs to be eliminated in international and national law. Adherence needs to be monitored and enforced and yes, this will be expensive and invasive.
Our Modernising CITES model for making the legal trade in wild flora and fauna sustainable is such a model – it includes both expensive and invasive monitoring (paid for by business who profit from the legal trade, not governments). Alternatively, the right to exploit nature will have to be severely constrained – this would be a return to a societal model based on taboos and commons management principles. Despite this being a valid approach to stopping the destruction that is undermining both the integrity of ecosystems and our own basis for existence, such a drastic departure from private property rights to a ‘commons’ system does not seem feasible at this current time.
We need to urgently acknowledge that the assumptions the current private property rights framework is based on are no longer valid. Rational self-interest is rubbish anyway, there is a body of research confirming that humans are rarely ever rational in their decision making. It follows that the assumptions being implicitly made about private property rights incorporating the right to destroy are irrational. They don’t serve the greater good, the only serve short term interests of the property owners. With the state of the planet on the brink of catastrophic biodiversity loss, they certainly no longer serve us collectively and need to be dumped.
While some laws have already been put in place to restrict the right to destroy, these are currently about saving historic and culturally significant buildings and artwork. Which tells us a lot about human priorities – let’s save our monuments to our own glory, but no problem if you want to trash the planet we all live on and depend on.
We can always make off to a better one somewhere in a galaxy far, far away!! Whoever came up with the idea that humans act rationally needs to seriously have their head examined (posthumously!!).
There are very few things as irrational as the right to destroy. It is high time that we deal with the worst aspects of private property rights and certainly the implied right to destruction needs to be abolished when it comes to wildlife and the natural world more broadly.