Greening Capitalism? A Critical Discussion of Rights-Based Climate Litigation Against Carbon Majors

Petel, Matthias
(2022) The Law and Political Economy of Business and Human Rights – A Turn to Root Causes? — Location: Erasmus University Rotterdam (10.November.2022)

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  • Petel, Matthiasorcid-logoUCLouvain
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Abstract
The strategic use of human rights in climate litigation is on the rise. After suing the States, climate activists are now targeting transnational corporations. This recent trend has been hailed as groundbreaking in the fight for corporate accountability and against climate chaos. In this contribution, we propose a critical discussion of the actual promises of this rights-based litigation strategy and more specifically of its capacity to address the roots of climate change, thereby exploring the articulation of "Law and Political Economy" and "Business and Human Rights" frameworks in a specific context. Many authors consider that the ultimate cause of climate change lies in capitalism’s endless need for expansion and for accumulation or, at least, that any ambitious and relevant climate mitigation strategy requires a move beyond capitalist structures. Following those assertions, human rights strategic litigation appears useless. Indeed, the objective of such legal proceedings is not to profoundly transform the governance structure of the companies that are sued by challenging the internal allocation of powers between capital and labor, nor to denounce the profit-making rationale shaping energy production decisions. Instead, the NGOs that engage in strategic litigation aim to the modify the companies’ business plans, while leaving their legal and economic structures untouched. Simply put, it seems that rights-based climate litigation will only foster the greening of capitalism. While having some merit, we argue that this depiction is reductive on two grounds. First, extractive capitalism rests on the legally permitted transfer of costs (social and environmental)onto more vulnerable individuals and communities. While failing to address the privatization of benefits, those legal actions call into question the attempt to socialize the costs. Therefore, by forcing the “internalization” of environmental externalities, climate litigation actually threatens one of the roots of the capitalist scheme. Second, strategic litigation is generally part of broader political campaigns seeking to put pressure on corporate actors. Hence, one should distinguish the legal demands, which are necessarily constrained by existing capitalist legal structures, from the political ones which may be much more radical in envisaging post-capitalist futures. Beyond their mere usage as legal arguments, human rights can also become a political language pointing out the capitalist roots of ecological destruction.
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Petel, M. (2022). Greening Capitalism? A Critical Discussion of Rights-Based Climate Litigation Against Carbon Majors. The Law and Political Economy of Business and Human Rights – A Turn to Root Causes?, Erasmus University Rotterdam.