But our people could not be got to see how artificial our prosperity was….that the course of trade once turned away from us…might never return.
George Tomkyns Chesney
Should we protect the rights of future trade?
Laws governing the conduct of policy and practice in enterprise and competition could be said to be the most comprehensively and consistently enforced regulations on the planet. They have lead to the dissolution of monopolies such as Standard Oil and “Ma” Bell and the levying of huge fines for breaches of competition law.
This implies that the rights of enterprise, private trade and market activity are important and worth protecting. However, given the environmental and social challenges of the next few decades, how likely is it that such rights can be protected in the future?
The right to trade on a declining planet?
Trade as we have known it is endangered. Clear trends in demographics, urbanisation, water quality and availability, climate stability, resource scarcity and ecosystem health represent risks to the continuation of trade as usual.
There is no point preserving the rights of private enterprise when the very viability of the market itself is threatened by risks that are being largely ignored by trade law, economic rules and governmental policy.
(Some) Enterprise can see the challenges of business as usual…
…look not at the greatness of the evil past, but the greatness of the good to follow.
From Thomas Hobbes’ 7th Law
A growing number of companies have made commitments to ambitious sustainability goals which derive from a clear eyed and rational interpretation of observable environmental and social trends.
Interface, Unilever, Nike and GE, recognising that their longevity relies upon the health and vitality of natural capital and the continuing stable functioning of natural systems, have developed plans to transform their production activities to become sustainable.
A restraint of future trade?
Transition pathways to a sustainable future have also been developed by groupings of progressive business, yet the success of such plans are existentially imperilled by an economic and political consensus which seems to be more concerned with protecting and valuing the enterprise of the past than building the enterprise of the future.
Economic and political frameworks have so far failed to present a cogent and consistent pathway for sustaining global enterprise in the face of predicted disruption.
This failure represents a restraint of future trade.
The Rise of Rights
“In every commercial state, notwithstanding any pretension to equal rights, the exaltation of a few must depress the many.”
A significant trend in environmental law in recent years has been to seek to establish the primacy and importance of preserving the functioning of ecological systems and to develop the concept of “planetary rights”. Such activities focus upon the adoption alongside the United Nations Declaration of Human Rights, of a Universal Declaration of Planetary Rights.
Such efforts are being developed by an international network of environmental lawyers lead by the UK based lawyer Polly Higgins. Higgins has campaigned for the United Nations to recognise the concept of Eradicating Ecocide, which is defined as:
“The extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.”
Ecocide has been defined as the missing “5th Crime against Peace”, with the argument of its proponents that it should have the same status in international law as other recognised crimes against peace of Genocide, Crimes Against Humanity, War Crimes, and Crimes of Aggression.
Such efforts to create legal responsibility for environmental degradation and destruction are likely, in practice, to be fraught with difficulty in creating clear lines of responsibility, cause and effect and in proving prior knowledge of the environmental implications of individual decisions.
In addition, as environmental degradation created by issues such as climate change is the result of a multitude of aggregate actions, this creates even more significant challenges for proving legal responsibility. In essence, where our modern way of life gives rise to a range of negative unintended consequences, we could all be said to be complicit in a crime. But crimes where everyone is guilty are problematic both in law and in practice.
While the acceptance by the UN and its constituent nations of the concept of Ecocide and the adoption of the Universal Declaration of Planetary Rights may be difficult to achieve in practice, the development of such concepts indicates a thread of activity which will likely lead to the adoption of similar concepts over the longer term.
In Ecuador the 2008 constitution formally enshrined the rights of nature alongside the rights of citizens and the responsibilities of government. The rights included the respect for existence where life occurs and is reproduced, the right for restoration where damage has occurred. The constitution also states that restrictive and preventive measures will be applied where activities might permanently damage ecosystems or their function. In April 2011 Bolivia took a similar path, voting to enshrine rights of earth into law.
A declaration of the Rights of Future Trade
Thus such a people reap jointly the whole advantages of their country, or neighbourhood, without having their right in so doing called in question by any.
The idea of declaring rights is of course not new, in the eighteenth century Thomas Paine and Thomas Spence coined the phrase “The Rights of Man” – establishing the idea that humans are born with what should be inalienable rights. Such rights were integrated into the foundations of the French Declaration of Human and Civic Rights and the US Declaration of Independence.
Perhaps it is time for a parallel declaration to enshrine and protect the birthright of all humans to partake in activity which brings them reward, security and the use of their physical and cognitive abilities in perpetuity (or until the end of their world).
This declaration could consist of the following statements of principle:
- Just as commercial entities have a right to trade now, they should also have a right to trade over the long term.
- Just as private enterprise seeks to profit through trade and exchange, so individuals should have the inalienable right to be equitably rewarded for the trade of their time, energy, expertise and creativity in the employ of others.
- Just as people all across the world wish to earn money for themselves and their families, so they should have the right and ability to do this over time.
- Just as the graduates of today seek to apply commercial and technical skills to careers in enterprise, so they should have the rights to do so without massive structural instability and market failure.
- Just as those living today have had the opportunity to use the rules of trade, enterprise and exchange for personal and common gain, so those as yet to come deserve the rights to do the same, without being born into a bankrupted, broken system on a declining planet.
How could companies enhance their contribution to the Rights of Future Trade?
The intent behind the idea of the Rights of Future Trade is to explore and exploit the dissonance between the emerging recognition of the need for radical change from leading progressive businesses and the general rules of trade and competition law which promote business-as-usual likely to undermine such aspirations.
There are ways that companies could explore these issues through asking the following type of questions:
- Do we utilise a scarce resource in such a way that will prevent its continuing use and utility?
- Do we rely upon a resource or are we developing technologies which actively obstruct new market entrants?
- Do we utilise a technology or occupy a market which gives rise to systemic ecological, social or economic risk likely to result in significant disruption or collapse?
- Do we balance our reliance upon social capital and societal infrastructure with our reinvestment and tax payments?
- Do we gain subsidy from common wealth for private profit or can we demonstrate that we balance private profit with the creation of new common wealth?
Building a future for equitable, sustainable enterprise
The concept of the Rights of Future Trade seeks to do two things. First, to see if an aspect of the infrastructure of enterprise and trade rules could be ‘hacked’ to produce sustainable outcomes. Secondly, to raise the idea that businesses with truly strategic sustainability intent must start to work to change the rules by which all business must operate.
It is time for trade law, policy and regulation to protect the Rights of Future Trade, identify and remove barriers which represent a restraint on future trade and to allow all current and future members of our species to thrive and share in the enterprise which sustains us all.
A short version of this piece was published by FastCoExist on 5/03/13.
This piece was further revised to add content on 26/01/16.