Towards ‘climate justice’? A critical reflection on legal subjectivity and climate injustice:...

Towards ‘climate justice’? A critical reflectionon legal subjectivity and climate injustice:warning signals, patterned hierarchies,directions for future law and policy

Anna Grear*Cardiff Law School, UK

The recent high-level emergence of ‘climate justice’ in the normative and policy discourseaddressing the social and legal aspects of climate change is welcome. However, certaindangers of co-option face the concept as it gains institutional traction. Drawing on a cri-tical theoretical reading of the patterns of climate injustice and their relationship withliberal legal subjectivity (and with the related themes of the politics of dis/embodiment,corporate juridical privilege, (neo)colonialism and the highly uneven structure of glo-balized world order), this article argues that ‘climate justice’ is more likely to sustainthe necessary resistive critical energies if informed by critical legal reflection on histor-ical and contemporary patterns of climate injustice, particularly as they emerge in rela-tion to the privileged trope of liberal legal subjectivity and the juridical privileging ofthe corporate form. Future policy directions indicated by the analysis are brieflyintroduced.

Keywords: climate justice, climate injustice, co-option, critique, legal subjectivity, corporatejuridical privilege, legal complicity, human rights, critical reflexivity

1 INTRODUCTION

On 23 September 2013, the global High Level Advisory Committee to the ClimateJustice Dialogue, an initiative including former presidents and other leaders from arange of relevant fields (politics, science, business, civil society and academia) issueda Declaration on Climate Justice.1 The Declaration sets out five priorities for securing

* I would like to thank Professor Carmen Gonzalez for her insightful reading of an earlierdraft of this article and for her valuable critique and comments; Evadne Grant for her forensicanalytical gaze; Vito De Lucia for his generous and insightful comments and Professor ConorGearty for his warm encouragement and for extending the original invitation for me to take upthe position of Dahrendorf Visiting Fellow 2013 at the Grantham Research Institute, LSE.I would also like to thank the Grantham Research Institute for generous financial and admin-istrative support; Marcus Hedahl for his enthusiastic facilitation of Dahrendorf Working Group3 and Marie-Julie Chenard, Ginny Pavey, Jo Miller and Melissa Stubbs-Bladen for their tirelessefficiency and kindness. Any errors remain the author’s alone.1. Available at <http://www.mrfcj.org/news/2013/declaration-climate-justice.html> accessed8 October 2013.

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‘a just and sustainable future’: empowering those most affected by climate change;reducing emissions; establishing a new investment model; enforcing accountability;and building strong legal frameworks.2

Such high profile adoption of the concept and language of ‘climate justice’ in thenormative and policy discourse addressing the social and legal aspects of climatechange is welcome. Without raining on the justice-facing parade, however, thereare significant reasons to be aware of certain dangers facing ‘climate justice’, particu-larly as the concept gains institutional traction. Critical legal scholarship reveals agenuine possibility that the concept (just as ‘human rights’ and ‘sustainable develop-ment’ before it) will be as vulnerable to co-option in the service of ‘business as usual’as any other progressive concept. Such a possibility does not mean, however, thatthe search for climate justice should be abandoned – far from it. It does suggest,however, that the meaning of the concept must be forged in a critically informedand reflexive way.

This article explores the insights for ‘climate justice’ discourse and practicethat emerge from a sustained genealogical reflection – informed by critical legalscholarship – upon climate injustice. Such reflection reveals patterns with deeprelevance for the future development of ‘climate justice’ as a concept. Three signalsare particularly provocative: first, that (European, rationalist) liberal law – in par-ticular its constitution of juridical subjectivity – is thoroughly tilted and deeplyimplicated in the genesis of the climate crisis and in continuing patterns of climateinjustice; secondly, that this tilted ideological field has profound implications forany policy-making strategies that invoke (as the climate justice approach takenby the Declaration does) human rights-based approaches and/or strong rule oflaw frameworks; and thirdly, that the adaptive dominance of the corporate formreveals the vital importance of making immanent to climate justice discourse theneed for reflexive critique if it is to resist discursive capture.

The argument presented here will explore these three signals in turn before indicat-ing some specific policy directions aimed at fortifying the progressive promise of‘climate justice’ as a future-facing, adaptive politics of action.

2 REVEALING PATTERNS: A CRITICAL GENEALOGICAL READING OFLEGAL SUBJECTIVITY AND CLIMATE INJUSTICE: THREE SIGNALSFOR ‘CLIMATE JUSTICE’ DISCOURSE

2.1 Tilted law, exclusionary subjectivity and climate crisis

2.1.1 Climate crisis and the law – of complexity and complicity

It is painfully obvious that the law has not yet delivered an adequate response to theurgent problem of climate change. Indeed, finding an adequate response to climatechange presents a challenge of unprecedented global complexity for legal systems.This problem stems directly from ‘the complexity of the climate system [itself: to]its myriad of parts, interactions, feedbacks and unsolved mysteries’3 but the challengefor law is exacerbated by the organization of law itself. There is a profound and

2. The full text of the Declaration is available here: <http://www.mrfcj.org/media/pdf/Declaration-on-Climate-Justice.pdf> accessed 8 October 2013.3. J Rial et al., ‘Nonlinearities, Feedbacks and Critical Thresholds Within the Earth’sClimate System’ (2004) 65 Climate Change 11–38 at 33.

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counterproductive discrepancy between the complexity of the climate system as partof a living ontological plane, and law’s fundamentally fragmentary responses, whichremain locked (in the main) within path-dependent priorities, boundaries and disci-plinary commitments. This much is evident in the doctrinal, conceptual and institu-tional separations marked out between – for example – human rights and climatechange.4 Legal thought, moreover, has a deep tendency to deploy certain conceptualstructures: binaries; reductionisms; atomistic, linear views of causation; taxonomies;separative, bounded domains; territorial jurisdictional parameters, and so forth –

none of which fit well with the amorphous complexity of climate change.5 Law’staxonomical and linear tendencies, if anything, tend to exacerbate law’s inadequatesystemic grasp of the challenges.

It is in part to address the ‘silo’-like separation of legal taxonomies – and moreimportantly, their counter-productive effects – that ‘climate justice’ has emerged asa language drawing together a more blended set of legal concerns. Human rightsare, in the light of this approach, an intrinsic and indispensable element of any ade-quate response to climate crisis: human rights and climate change are drawn togetherby a justice-facing language pointing us directly towards explicitly socio-materialconcerns – to relative position in the face of crisis;6 to differing degrees of vulnerabil-ity and resilience;7 to questions of inclusion and exclusion constructed by the policyspaces for addressing climate change, and related concerns.8 In this sense, theDeclaration expresses earlier climate justice social movement demands9 and repre-sents a timely attempt to address the complexity of the social and legal aspects of

4. See, generally, S Humphreys (ed.) Human Rights and Climate Change (CambridgeUniversity Press, Cambridge, 2010).5. KBosselmann, ‘Losing the Forest for the Trees: Environmental Reductionism inLaw’ (2010)2 Sustainability 2424–48, <http://www.mdpi.com/2071-1050/2/8/2424/pdf>; K Bosselmann,‘A Vulnerable Environment: Contextualizing Law with Sustainability’ (2011) 2(1) Journal ofHuman Rights and the Environment 45–63, especially at 46–51.6. This important idea is implicit in the Declaration on Climate Justice, in its references to‘the most affected’ communities, ‘the poorest’, and so forth (n 2). Outrage at such a differentialsituation is often a core theme informing climate justice protest and social movement activism.It was highly visible, for example, on the streets of New Delhi in 2002 at the eighth Conferenceof the Parties (COP 8), where a climate justice coalition of fishermen, marginal farmers, indi-genous peoples and NGOs insisted that ‘climate change is a human rights issue’ and directlytargeted the selective globalized market principles deployed to address the climate crisis withthe anti-inequality slogan: ‘Our world is not for sale!’ (J Timmons Roberts and BC Parks, ‘Eco-logically Unequal Exchange, Ecological Debt, and Climate Justice: The History and Implica-tions of Three Related Ideas for a New Social Movement’ (2009) 50 (3–4) InternationalJournal of Comparative Sociology 385–409 at 386). Such outrage is richly laden with implica-tions concerning embodied vulnerability, relativity of position and the stark – even violently –

uneven socio-materiality of climate change impacts.7. The Declaration directly addresses this in terms of the ‘disproportionate burden’ of climatechange placed on those with the least resilience for adaptation – ‘the poorest and most vulnerable’in particular.8. The Declaration also explicitly calls for ‘giving voice’ to the most affected communities.While issue could be taken with the idea of ‘giving voice’ to those who already speak truth topower, articulately, in response to extensive climate injustices, the underlying idea of hearingaffected communities is essential for the rebalancing of a global system that appears systema-tically to exclude or marginalize certain identifiable constituencies from the centres of power.9. See, for an account of the evolution of the concept and the movement for climate justice,Timmons Roberts and Parks (n 6).

Towards ‘climate justice’? A critical reflection on legal subjectivity and climate injustice 105


climate change with more all-embracing, materially responsive strategies – strategiesresponsive to, as the Declaration puts it, ‘the injustices caused by climate change andthe responsibility of those who have caused it’.

Yet, even so, there are reasons to be alert – both theoretically and politically –

concerning the strategy of turning to a ‘strong rule of law’ in the search for solutions –not least because climate injustice (which is so much more than ‘the injustices causedby climate change’ and implies so much more than the need to identify and hold respon-sible identifiable causal actors) is a manifestation of a structural pathology in which lawitself is central. Let us turn first to the role of environmental law and governance.

2.1.2 Law’s structural complicity?

In his 2013 review of environmental law and governance, Turner argues that ‘the verydesign of the law itself is fundamentally predisposed to environmental degradationand forms part of a dysfunctional global legal architecture which cannot achieveenvironmental sustainability’.10 Turner is unequivocal concerning the fact that theexisting foundational commitments of law make it exceedingly difficult to hold toaccount some of the most egregious offenders against environmental standards. Inmaking his argument, Turner identifies a key feature of the global legal architecture:the centrality of the corporate form and its interests: He explicitly points to the legalstructure and historical evolution of business enterprises – arguing that, ‘even during[their] formative years, certain features were being built into their design that wouldeventually have huge impacts on the environment in the modern era’.11 Turner con-cludes that separate legal personality, limited liability, the separation between owner-ship and control of corporations, and the legal duty placed upon company directors topursue the company’s best interests as a profit-making entity are key structural jur-idical reasons why environmental legal responses fail with respect to meeting impor-tant accountability targets for modes of environmental degradation.12 Moreover, thestructural components of the corporate form are nowadays globalized, making critiqueof their form globally salient: Turner’s critique of the modern corporate entity are asrelevant for China and Japan as they are for France and Germany – and for the Anglo-American corporate form now so dominant in the international order.13 Anticipatingthe response that there are new forms of ‘environmentally-facing corporations’,Turner counters that ‘even in a corporation that has certain environmental standards,there is still a bottom line as it is a business venture that is designed for the creation ofprofit and therefore such standards can only go so far’.14

Sinden puts the point in a more critical context:

In the face of all of this corporate greening, it’s easy to lose sight of the vast power imbalancethat still forms the backdrop for the political debate on climate change. Increasingly, thesestories of corporations going green are being spun into a larger cultural narrative of thecorporation as redeemed sinner. Like the Grinch stopping at the top of the mountain tohear the joyful voices of the carolers below, the new green corporation has heard the

10. S Turner, A Global Environmental Right (Routledge, London 2013) at 32, emphasisadded.11. Ibid., at 38.12. Ibid.13. Ibid., 42–4.14. Ibid., at 42.



environmental gospel and its heart has grown five sizes. But it would be a mistake to think thatthe recent concessions of many in the fossil fuel industry with respect to global warming meanthat corporations have suddenly come around to represent the best interests of the generalpublic. Corporations are still structured by law to put the short-term profits of shareholdersfirst. Even as they abandon their oppositionist stance and come to the table acknowledgingthe existence of climate change and the need for regulation to curb it, they will come to thebargaining table with the primary purpose and duty of protecting short-term share price.15

Sinden’s point about the backdrop of power imbalance is fundamental. It is clear thatcorporations have exerted and continue to exert considerable influence – with thecomplex complicity of neoliberal states – both upon states themselves and upon thespecialist legal architecture (including key international institutions) set up by states torespond to centrally important law and governance challenges, including climatechange.16 It is not going too far, indeed, to claim that corporations dominate the entireglobal order: this fact being widely accepted by theorists of globalization as the defin-ing phenomenon of the global age.17 Transnational corporations (TNCs)18 exertalmost unimaginable power, supported in their dominance by powerful economicinstitutions (themselves ‘both a symptom of and a stimulus for globalization’)19

such as the International Monetary Fund (IMF), the World Trade Organization(WTO) and the European Central Bank (ECB). The guardians of the neoliberal globalorder – which many (especially in the light of the 2008 financial crash and its after-math) see as being the guardians of a global economic elite – are committed, it seems,to an ideology with demonstrably destructive social and environmental impacts, and aprofoundly intensifying effect on the unevenness of the legal order.

Gill has argued, for example, that the worldwide amendment of old constitutions andthe formation of new ones under the influence of the IMF, theWorld Bank and other insti-tutional agencies of neoliberalism, amounts to the construction of a ‘de facto constitutionfor global capital’, operative in a range of contexts: international, regional andnational.20 Beck asserts that the power of global business is engaged in a meta-struggle

15. A Sinden, ‘Climate Change and Human Rights’ (2007) 27 Journal of Land Resources andEnvironmental Law 255–71 at 268.16. De Sousa Santos argues emphatically that TNCs are the ‘key agents of the new worldeconomy’: B De Sousa Santos, Toward a New Legal Common Sense: Law, Globalizationand Emancipation (Butterworths, London 2002) at 167.17. See R Shamir, ‘Corporate Social Responsibility: A Case of Hegemony and Counter-Hegemony’ in B de Sousa Santos and CA Rodrigues-Garavito (eds), Law and Globalisationfrom Below: Towards a Cosmopolitan Legality (Cambridge University Press, Cambridge2005), 92–117 at 92.18. Paragraph 20 of the UN Document, ‘Norms on the Responsibilities of TransnationalCorporations and other Business Enterprises with regard to Human Rights’ (2003) UN docE/CN/.4/Sub.2/2003/12/Rev.2 defines a TNC as ‘an economic entity operating in more thanone country or a cluster of economic entities operating in two or more countries – whatevertheir legal form, whether in their home country or country of activity, and whether takenindividually or collectively’.19. R McCorquodale and R Fairbrother, ‘Globalization and Human Rights’ (1999) 21 HumanRights Quarterly 735–66 at 737.20. S Gill, ‘Constitutionalizing Inequality and the Clash of Globalizations’ (2002) 4 Interna-tional Studies Review 47–65 at 49. Gill argues that, in essence, the new institutional arrange-ments (the new ‘European architecture of economic governance’) were designed precisely to‘separate politics from economics’. He cites the then new constitutional framework of theEU (which carefully shielded the European Central Bank from political influence) as an



with nation states – a reality in the light of which ‘globalization needs to be decoded’ –as ‘a creeping, post-revolutionary, epochal transformation of the national and interna-tional state-dominated system governing the balance of power and the rules ofpower’.21 And while analysing this struggle is rendered vastly more complex byforms of political complicity,22 by the indispensability of state power to the conditionsof accumulation for capital and by the fact that it is the state itself which has providedthe ‘conditions enabling global capital to survive and navigate the world’,23 it remainsrelatively clear that contemporary globalization is, in Beck’s words, ‘one of the mostimportant changes there has been in the history of power’.24 The analytical intricacyof this shift presents a Gordian knot of complex sets of shifts and struggles in whichTNCs have emerged to function as ‘private sector quasi-states’.25 This power is exer-cised in (and facilitated by) wider structural conditions in which, as Woods has argued,economic power has become detached from direct coercion – meaning that the ‘eco-nomic hegemony of capital can extend far beyond the limits of direct political domina-tion’.26 In fact, Woods argues, ‘capitalism is distinctive among all social forms preciselyin its capacity to assert its domination by purely economic means’ – and that ‘capital’sdrive for relentless self-expansion depends on this unique capacity, which applies notonly to class relations between capital and labour but also to relations between imperialand subordinate states’.27 In the contemporary globalized order such realities create, tosay the least, ‘a very complex relation between state and economic power’.28

2.1.3 Implications for climate law initiatives

Myriad such analyses, unsurprisingly, imply a deepening of neoliberal capitalist ideol-ogy’s grip on mainstream international legal strategies for addressing the climate crisis.Turner’s disturbing thesis is amply supported by such critiques of the transmutation ofpolitics and law in favour of global corporate power and may also be borne out by thecontemporary emphasis placed upon ‘greening’ market growth as a strategy for redu-cing climate emissions. Such strategies, while important, carry the risk, however, thatin bringing the ‘value of ecosystem services’ and ‘natural capital’ into economic andlegal calculations, the market is simply confirmed as the meta-structure dominatingall other structures, while neoliberalism simply redeploys itself in modes of

example with near-prototypical status in the neoliberal world order. He writes, ‘[a]s I conductedresearch, I realized the scale of the historical experiment under way, particularly in the formerEast bloc and the former Soviet Union, and how this was associated with the new constitution-alism. It also was linked to the “great transformation” in the Third World, where, following thedebt crisis, in many nations there was a shift away from state-mercantilist economic develop-ment toward what Latin Americans call neoliberalismo’ (ibid). All these constitutional amend-ments amount to the ‘institutionalization of a framework of constitutional constraintstheoretically designed to maximize the efficiency of … global capitalism’ (ibid).21. U Beck, Power in the Global Age (Polity Press, Cambridge 2005/2006) at 52.22. See, e.g., the excoriating account offered by G Monbiot, Captive State (Macmillan,London 2000), which points unambiguously at multiple corrupt intimacies between privateand state power.23. EM Woods, Empire of Capital (Verso, London 2005) at 139.24. Beck (n 21) at 52.25. Ibid., at 75.26. Woods (n 23) at 12.27. Ibid.28. Ibid., at 13.



‘environmental reductionism’.29 While appropriate forms of market accountability (asUNEP signals in its 2011 report) are of pivotal importance,30 it is essential to keepin mind that market-based solutions place intrinsic ideological limits on the horizonsof possibility. They tend to avoid confronting a fundamentally unsustainable capitalistcommitment to unlimited growth;31 they occlude important social dimensions of eco-nomic activity – including socio-economic human rights;32 and they ignore – to a sig-nificant extent – both the biomaterial substrate of capitalism and ecological limits,unless and until these ‘make themselves felt as economic limits – that is, as a cost bur-den within the economic system’.33

Market-based approaches also evade deeper questions concerning market-dominance itself. They also tend to be corporation-dominated and overly corporation-friendly. This is true even of avowedly ‘green’ market approaches. Indeed, that is acharge levelled by Adelman at the outcome of Rio+20, which, he argues, failed to deli-ver anything beyond a ‘greened’ market mono-culturalism.34 However, it seems deeplycounterintuitive not to question the wisdom of placing faith in markets alone to transformthe eco-destructive excesses that market capitalism itself has generated.35 The deep linksbetween capitalism and environmental destruction are now well established,36 as is thelink between capitalism and climate change.37 ‘Greened’ market approaches may simplymean that ‘nature’ becomes even more deeply commodified – just another interchange-able global commodity-element to be traded and exploited.

None of this holds out great hope for environmental accountability or for climatejustice. Not only is there a fundamental misalignment between the complexity ofclimate crisis and the law’s reductive tendencies, but law’s ideological structure (itsdeep intimacy with capitalism and its commitment to the centrality of the corporateform) renders law a paradoxical tool at best. The complexity of the state’s relationshipwith capitalist expansionism and the state’s role in designing a legal order in whichcorporate capital power now predominates, means that we cannot afford to be naïve-about the promise of a ‘strong rule of law’ approach.38

29. See Bosselman (n 5).30. United Nations Environmental Programme (UNEP), Green Economy Report: Towards aGreen Economy: Pathways to Sustainable Development and Poverty Eradication (2011) avail-able at: <http://www.unep.org/greeneconomy/greeneconomyreport/tabid/29846/default.aspx>accessed 3 November 2013.31. This is an accusation directly levelled at the ‘green economy approach adopted by UNEPand other agencies. See, e.g., <http://climateandcapitalism.com/2012/02/08/behind-the-green-economy-a-new-drive-to-commodify-nature/> accessed 3 November 2013.32. B Unmüßig, W Sachs and T Fatheuer, Critique of the Green Economy: Towards Socialand Environmental Equity (Heinrich Boll Foundation, Berlin, 2012) at 36. The authors alsopoint out that ‘advocates of the monetization of nature rarely spare a thought for the social con-text within which “ecosystem services” are provided; indeed, such terms all but obscure thesocial context’, at 28.33. E Altvater, The Future of the Market (Verso, New York 1993) at 183.34. S Adelman, ‘Rio+20: Sustainable Injustice in a Time of Crisis’ (2013) 4(1) Journal ofHuman Rights and the Environment 6–31.35. M Koch, Capitalism and Climate Change: Theoretical Discussion, Historical Develop-ment and Policy Responses (Palgrave Macmillan, Basingstoke 2012).36. P Newell and M Paterson, Climate Capitalism: Global Warming and the Transformationof the Global Economy (Cambridge University Press, Cambridge 2010).37. Koch (n 35).38. Indeed, the rule of law cannot guarantee substantively just outcomes – especially while par-ticipatory access inequalities exist, including those mediated by structural economic dominance.



2.1.4 Climate change as a crisis of human hierarchy: linking legal subjectivityand climate injustice

Thus far, we have been drawing attention to the disjunction between the complexityof climate change and law’s path-dependencies and to the complicity of legal struc-tural design, including, focally, the design of the corporation in explaining the relativefailure to date of legal responses to environmental degradation. To this we addedcritiques of the dominance of corporations in the global legal order, especially TNCsas the ascendant actors of the neoliberal age, and implied that TNC dominance – an‘unprecedented’ shift in the nature of power39 – is linked to the ideological hegemonyand complexity of state–market relations thoroughly implicit in ‘greened’ marketresponses to climate change. We will now move closer to our core analytical target –the construct of the liberal legal subject – and to the intimate link between its precisecontours and the patterns of climate injustice.

Central to the analysis to follow is a particular claim highly relevant to the theme ofclimate in/justice: that climate crisis is readable as a crisis of human hierarchy. It will beargued in this part of the article that this crisis of human hierarchy is linked insignificant ways to the formation of legal subjectivity and – ultimately – to the contem-porary structural advantages accruing to the corporation as a juridical form/‘person’.In other words, the argument will show that Turner is right to identify the design ofthe corporation as a fundamental reason for the failure of environmental law andgovernance, and correct concerning law’s systemic complicity in environmentaldestruction. It will be argued, however, that the form of legal subjectivity is centralto understanding, not only corporate juridical advantage, but the historical and contem-poraneous production of climate injustice – and that the insights emerging from such anaccount are fundamental to the future resilience of climate justice as an evolving concept.

To place a crisis of human hierarchy at the heart of an analysis of climate change isa decisive move away from the fundamental suppositions of economic theory andmarket-based approaches. Economic theory, ‘in its single-minded focus on maximiz-ing aggregate social welfare … quite self-consciously ignores the distribution ofwealth and power in society’.40 But, as Sinden has rightly argued, ‘[o]nce we frameclimate change as a problem of power imbalance rather than economics, we canbegin to see the possibility that our human rights tradition might offer some usefulinsight’.41 Indeed we can – and this is precisely the impulse that the ‘climate justice’agenda – as formulated by the Declaration – responds to. However, critical reflectionupon the constitution of legal subjectivity takes us into the heart of internationalhuman rights discourse. There we find that human rights are deeply paradoxical con-structs, already colonized moreover – to a troubling degree – by the power of globalcorporate capital – at least in what Baxi names their ‘modern’ formation.42

The rule of law, in any case, is a highly plastic concept and its meaning remains open to a widerange of deployments. For a beautiful exposition of its complexities, see S Humphreys, Theatreof the Rule of Law: Transnational Legal Intervention in Theory and Practice (Cambridge Uni-versity Press, Cambridge 2010).39. Beck (n 21) at 52.40. Sinden (n 15) at 263.41. Ibid., at 259, emphasis added.42. Baxi distinguishes between ‘modern’ and ‘contemporary’ orders of human rights. Forhim, in ‘the “modern” paradigm of rights the logics of exclusion are pre-eminent whereas inthe “contemporary” paradigm the logics of inclusion are paramount. Second, the relationshipbetween human rights languages and governance, conduct and practices differ markedly in



2.1.5 Reflections on liberal legal subjectivity – a core critical target

To argue that the construction of liberal legal subjectivity is a key mechanism ofinjustice is not to make a new claim. Indeed, there are myriad well-established criticalaccounts problematizing the construct of the universal ‘human’ subject of law andrights discourse. As is well known, post-colonial, indigenous, feminist, queer, inter-sectional and other critical accounts converge, despite variant nuances and certaintheoretical disagreements, to implicate this construct as the privileged trope againstwhich its subjugated ‘others’ are constructed.43 Certain insights, drawn from suchaccounts, will be deployed in the argument that follows.

Fundamental to the formation of legal subjectivity, to environmental destructionand to human oppression are certain foundational commitments – core Europeanontological and epistemological closures long contested in philosophy and bycritical theory yet remaining stubbornly influential in the cognitive architectureof liberal law and legal systems.44 These commitments have been identified ascore to the patterns of systemic violence enacted against non-dominant humans,and non-human animals and environmental systems45 throughout the history ofcolonialism46 and capitalism47 – a history exposing, indeed, the long temporal arcof the foundations of climate injustice.

Central to these commitments (and historical patterns of violation) are certainpresumed subject–object relations. When Descartes carved an ontological rift betweenres cogitans (the mind) and res extensa (everything else – including the human body)he enacted a fateful reduction. As Weber puts it, since then ‘the sciences, whether

the two paradigms. Third, the “modern” enunciation of human rights was almost ascetic; incontrast, contemporary enunciations present a carnival. Fourth, contemporary paradigminverts the inherent modernist relationship between human rights and human suffering’:U Baxi, The Future of Human Rights (Oxford University Press, Oxford 2006) at 42. Acore critical insight driving Baxi’s distinction concerns the tension between rights as the pro-duction of the colonial dominance of the (‘European’) Global North and rights as authored bycommunities of struggle and resistance, including the subaltern social movement energies ofthe (colonialized/post-colonial/neo-colonized) Global South. Baxi’s broader discussion of‘modern’ and ‘contemporary’ notions of human rights can be found at pp. 33–58. Baxi raisesa related and critical question concerning whether contemporary notions of human rights canavoid being simply ‘the dynamic unfolding of the modern’ – and whether contemporaryhuman rights ‘constitute no more than a series of footnotes to the texts of the “modern” con-ceptions of human rights’ (at 43).43. This is, in part, an inevitable function of the way in which conceptual entities (such as ‘man’)are products of a system of culturally and linguistically constructed differences characterized by theexclusion of ‘contiguous and oppositional concepts’ (such as ‘woman’ and/or ‘animal’, etc.): ‘Weget the sense of what something is, by reference towhat it is not, as indicated by its place in a systemof related terms’: M Davies, ‘Exclusion and the Identity of Law’ (2005) 5 Macquarie Law Journal5–30 at 7. That this can translate into a deeply political – even violent – process of policing bordersbetween categories is clear from a wide range of accounts and histories.44. The literature on this is vast, but see, for a particularly pertinent discussion, P Halewood,‘Law’s Bodies: Disembodiment and the Structure of Liberal Property Rights’ (1996) 1 IowaLaw Review 1331–93.45. D Nibert, Animal Rights, Human Rights: Entanglements of Oppression and Liberation(Rowman and Littlefield, Oxford 2002).46. G Huggan and H Tiffin, ‘Green Postcolonialism’ (2007) 9(1) Interventions: InternationalJournal of Postcolonial Studies 1–11.47. Nibert (n 45).



natural, social or economic, try to grasp the world as if it were a dead, mechanicalprocess that could be understood through statistical or cybernetic analyses … [as a]dead res extensa … – the material world’.48 In law, this reductionism is expressed(through the body-excising dualism of Descartes and the body-transcending rational-ism of Kant49) in a complexly disembodied juridical notion of the human subject anda related juridical objectification of the ‘natural world’.50 Thus, in law, as in science,the modern ‘rational human subject’ forms the epistemic ‘centre’ surrounded by its‘environment’,51 understood as mere ‘matter’ ‘out there’.52

This Western ontology of disembodiment – and its accompanying ‘epistemology ofmastery’53 – has deep implications for climate in/justice. Quite apart from inaugurat-ing the modern trajectory towards environmental devastation and climate crisis, thisontology has decisive implications for relations between humans as mediated bylaw. Halewood has argued that Cartesian and Kantian ontology underlies the factthat ‘liberal theory, as a result of its ethic of disembodiment, cannot yield substantiveequality’.54 Relatedly, disembodiment also directly contributes to liberal law’s mis-leading mythical equivalence between individual legal actors, whose formal legalequality – untroubled by the socio-structural disparities contradicting the smooth‘neutrality’ that is the central and defining characteristic of the liberal politicalorder55 – means that ‘individuals’ and ‘corporations’ are imagined as putative equalsbehind the public/private divide.

History, however, as Horwitz once noted, is where ideology breaks cover.56

Insights drawn from critical socio-historical accounts reveal the true significance ofthe ontological and epistemic commitments of European disembodied rationalism –

commitments core to the enacting/expressing/enforcing of identifiable, patternedorders of human hierarchy – both within and beyond European societies.57 Such com-mitments and hierarchies played a core role in the expansion of European capitalistambition across the globe58 – the juridical facilitation of which provided the foundationsof the contemporary international legal order.59 Significantly, these commitments and

48. A Weber, Enlivenment: Towards a Fundamental Shift in the Concepts of Culture andPolitics (Heinrich Boll Foundation, Berlin 2012) at 14.49. Halewood (n 44).50. Bosselmann (n 5).51. As Philippopoulos-Mihalopoulos has pointed out, even the French etymology of the term‘environment’ drives at that which revolves around a central subject: A Philippopoulos-Mihalopoulos, Law and Ecology: New Environmental Foundations (Routledge/Glasshouse,Abingdon 2012) at 7.52. See HY Jung, ‘Enlightenment and the Question of the Other: A Postmodern Audition’(2002) 25 Human Studies 297–306.53. L Code, Ecological Thinking: The Politics of Epistemic Location (Oxford UniversityPress, Oxford 2006).54. Halewood (n 44) at 1335, emphasis added.55. S Fredman, Women and the Law (Oxford University Press, Oxford 1997).56. MJ Horwitz, ‘Comment: The Historical Contingency of the Role of History’ (1981) 90Yale Law Journal 1057–1059.57. See, e.g., C Pateman, The Disorder of Women: Democracy, Feminism and PoliticalTheory (Stanford University Press, Stanford 1989).58. Huggan and Tiffin (n 46).59. See A Anghie, Imperialism, Sovereignty and the Making of International Law(Cambridge University Press, Cambridge 2005).



their related hierarchies are also thoroughly implicated in multiple forms of historicaland contemporary human and environmental violation.60

Huggan and Tiffin expose revealing convergences between the imposition ofrationalist human hierarchies and environmental degradation, for example whenthey argue that ‘the incursion of Europeans into other areas of the world from thefifteenth century onwards catastrophically resulted in genocide or the dispossessionand marginalization of indigenous peoples across the globe. It also caused drasticchanges in extra-European temperate as well as tropical environments’.61

These environmental impacts took place through the introduction of disease, thefelling of forests, the slaughter of indigenous animals and the introduction ofEuropean crops and livestock. Indigenous ontologies and epistemologies wereexcised by a hegemonic epistemology of mastery. The existing shared life-worldsof humans and animals indigenous to colonized spaces and places were either margin-alized or eradicated – with predictable results:

Whatever the extent of the change, the dispossessed frequently faced poverty and starva-tion, and the original accommodated relations between environment, humans and animalswere fractured, sometimes beyond repair. European hegemony replaced such broken com-munities with hierarchical interventions, ontologies and European epistemologiesimposed or imbibed through colonial institutions. … Western history, in both its Marxistand capitalist incarnations, worked ‘to assimilate diverse cultures and spiritual traditionsinto a homogeneous code’, at the same time as it ‘naturalized uneven economic develop-ment according to a linear narrative of civilization. Its success in doing this, however,depended on its ability to temper its teleological heavy-handedness with the promise ofprogress.62

As noted above, the ontology and epistemology of mastery enacted in such Europeancolonial practices was not unique to the task of imposing hierarchy upon the ‘indigen-ous native’ or ‘savage’ overseas. The self-same hierarchy had also long granted nat-uralized civilizational priority to white (rational) property-owning European males‘at home’, granting publicly sanctioned dominance – especially through the mechan-ism of the public/private divide – to men over women,63 and establishing other,related modes of hierarchy.64

Such forms of naturalized ‘civilized’ hierarchy were the inexorable outworking ofthe juridical, political and economic priority of rational, property-owning whiteEuropean men and their interests. Significantly, these interests were operationalizedthrough the juridical privileging of the corporate form, including – decisively – asa sovereign juridical subject. As Baxi puts it:

Long before slavery was abolished, and women got recognition for the right to contest andvote at elections, corporations had appropriated rights to personhood, claiming due processrights for regimes of property denied to human beings. The unfoldment of …‘modern’human rights is the story of near-absoluteness of the right to property as a basic human

60. M Bookchin, The Ecology of Freedom: The Emergence and Dissolution of Hierarchy(AK Press, Oakland 2005).61. Huggan and Tiffin (n 46) at 1.62. Ibid at 2 (original citations omitted).63. See, e.g., Pateman (n 57).64. See, e.g., the discussion in K Green, ‘Citizens and Squatters: Under the Surfaces of LandLaw’ in S Bright and J Dewar (eds) Land Law: Themes and Perspectives (Oxford UniversityPress, Oxford 1998), 229–56.



right. So too is the narrative of colonisation/imperialism which began its career withthe archetypal East India Company (which ruled India for a century) when corporatesovereignty was inaugurated.65

McLean has likewise identified the juridical privileging of the early transnationalcorporation as being decisive in the imposition of European colonial imperialism, not-ing (citing Twiss) that ‘[c]olonization by private entities has been the predominantform of western expansion since the sixteenth century and for this purpose charteredcompanies and philanthropic associations had often been vested with sovereignrights’,66 and that the later international ascendancy of the corporation brought notthe demise, but ‘the expansion’ of the ‘European family of nations’.67

McLean’s analysis also suggests the mythic nature of the formal equality attachingto the corporation as a juridical subject by exposing the falsity of the ‘contractualexplanation for the corporation’ because, in reality, the corporation was created bythe state, formed by operation of law. McLean argues that ‘if we start with the con-tractual explanation for the corporation then we will tend to analogize a company’srights and, more importantly, its obligations, to those of a natural person’.68

This putative equivalence is deeply misleading. Liberal legal equality is, as wasargued above, achieved by selective disembodiment – by the excision of ‘thick’ bod-ily life for the ‘thin’ rationalistic juridical subjectivity fundamental to the operationa-lization of a quintessentially contractual legal and political order.69 The ‘naturalperson’ of law, because of its selectivity and disembodiment, is more like a cypherthan it is a corporeally specific, embodied vulnerable human being – a point with con-siderable implications for the juridical production of forms of socio-material injustice(including climate injustice).

The nineteenth century was a time of great significance in the genealogy of the lib-eral legal subject – both the ‘natural person’ of law and the corporate legal form. Itwas in this period that a fully capitalistic legal subjectivity emerged as a strategicallyimportant expression of modern rationalistic constructions of law, society and humanbeings. Norrie, for example, has traced the birth-frame of the liberal ‘juridical indivi-dual’ directly to nineteenth-century criminal law reforms in the direct service of prop-ertied, capitalist elites in England,70 in a period characterized by the ascendancy inEurope of positivism in both the sciences and law,71 a phenomenon that De SousaSantos unequivocally links to the promotion and protection of capitalistic interests.In the same timeframe, in the United States, the year 1886 saw the paired constructionof the ‘criminal’ and the ‘corporation’ as new ‘kinds of legal persons’ in the service ofelite, market power.72 Indeed, in this very development, the much-vaunted neutralityof liberal law was completely belied by the judicial declaration – made without

65. U Baxi, The Future of Human Rights (Oxford University Press, Oxford 2001) at 154.66. J McLean, ‘The Transnational Corporation in History: Lessons for Today?’ (2004) 79Indiana Law Journal 363–77 at 377.67. Ibid, at 377.68. Ibid.69. See Halewood (n 44).70. A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law(Cambridge University Press, Cambridge 2001).71. B De Sousa Santos, Towards a New Legal Common Sense: Law, Globalization andModernity (Sage, London 1990) at 40.72. C Federman, ‘Constructing Kinds of Persons in 1886: Corporate and Criminal’ (2003) 14Law and Critique 167–89.



hearing argument on the point – that the corporation is a person for the purposes ofthe 14th Amendment to the US Constitution.73

It is not difficult to discern law’s politics of dis/embodiment in these developments –nor their contradictory operation. Bodily and socio-material ‘differences’ weredeployed as the basic substrate separating the paradigm liberal legal actor from ‘his’‘others’, while the full significance of embodied, socially and materially situated lifefor legal outcomes was ruthlessly suppressed: ‘juridical man’ was constructedprecisely ‘at the cost of every social circumstance that actually brings individuals to rea-son and calculate in particular ways’.74 Such developments continued a bio-politicallogic (still visible in the neo-colonialisms of the current neoliberal global order) inwhich rationalization, systematization, capitalism and bodily materiality convergedwith oppressive results: Foucault, for example, has revealed the rationalistic (and‘expert’) disciplinary control of the body through the development of the prisonsystem, hospitals, asylums, factories and the like75 – while Woodiwiss reads suchdevelopments as producing bodies – both human and non-human animal – as rawmaterial for the industrial capitalist order.76 Nibert’s sociological analysis reachesmarkedly similar conclusions: by tracing detailed empirical evidence concerningthe development of industrial and corporate capitalism, Nibert reveals historical andcontemporary ‘entanglements of oppression’ uniting non-dominant humans, non-human animals and ecosystems.77 Importantly, these ‘entanglements’ reflect theexact contours of the ‘others’ constituted by the exclusions of liberal legal subjectivity.78

The tales of law’s violence against those subjects constructed as ‘marginal’ (whosebodies are ‘in the way’) – are depressingly familiar – whether past or present. Fromthe wholesale enclosure of land in the service of industrial agriculture in England;79

to the dispossession of indigenous peoples under European colonialism;80 to theviolent corporate neo-colonialisms enacted in the developing world;81 to the

73. Santa Clara County v Southern Pacific Railroad Co 118 US 394 (1886). The courtprefaced its judgment with the statement that it did not ‘wish to hear argument on the question’concerning whether the corporation was a person for the purposes of the 14th Amendment, stat-ing ‘we are all of the opinion [that it is]’. Finnis argues that not one ‘single sentence ofjustification’ has ever been added to what is effectively ‘the ukase of 1886’: J Finnis, ‘ThePriority of Persons’ in J Horder (ed.), Oxford Essays in Jurisprudence, Volume IV (Oxford Uni-versity Press, Oxford 2000), 10. (‘Ukase’ is an archaic term for an edict, which derives from theImperial Russian term for edicts issued by the Tzar.)74. Norrie (n 70) at 20.75. See, e.g., M Foucault, Discipline and Punish: The Birth of the Prison (A Sheridan (trans))(Vintage, New York 1995).76. A Woodiwiss, Human Rights (Routledge, Abingdon 2005).77. Nibert (n 45).78. A Grear, ‘The Vulnerable Living Order: Human Rights and the Environment in a Criticaland Philosophical Perspective’ (2011) 2(1) Journal of Human Rights and the Environment23–44.79. See, e.g., EM Wood, The Origins of Capitalism (The Monthly Press, New York 1999) at67–94.80. McLean (n 66); Huggan and Tiffin (n 46).81. See, for just one example of an extensive literature on specific cases of corporate malprac-tice and state complicity, C Kamphuis, ‘Foreign Mining, Law and the Privatization of Property:A Case Study from Peru’ (2012) 3(2) Journal of Human Rights and the Environment 217–53.More generally, see, e.g., C Jochnick, ‘Confronting the Impunity of Non-State Actors: NewFields for the Promotion of Human Rights’ (1999) 21 Human Rights Quarterly 56–79 at 65;S Joseph, ‘Taming the Leviathans: Multinational Enterprises and Human Rights’ (1999) 46



continuing global industrial predation of the environmental commons;82 to theunevenly distributed patterns of advantage and disadvantage within the developedworld83 – a sense emerges in which all of these patterned, familiar injusticeswere/have been or are still juridically mediated. Law – and the international legalorder – still stands marked by oppressive patterns distinctive to its European ideo-logical foundations,84 and tracing the contours of a privileged (European) juridicalsubject (and ‘his’ ‘others’). Relatedly, law systemically privileges the corporation asan idiosyncratic juridical form possessing disembodied characteristics that nocorporeally specific human (or animal) body can replicate.

The dominant constitution of liberal legal subjectivity is thus unresponsive – at afundamental, structural level – to the ethical implications of vulnerable embodiedmateriality, including the bio-materiality of the ‘environment’. This insight tends tosupport Turner’s findings concerning the incapacity of the global legal architectureto respond to environmental degradation. It suggests that the entire edifice of interna-tional law – and liberal law in general – is legible as a form of systemic closure oper-ating precisely against law’s own apparent attempts to respond to environmentalcrisis. Indeed, through the lens of critical socio-historical and critical legal accounts,we can read the European autonomous legal subject as a central component of a struc-tural ‘blindness’ continuing to mask the juridical imposition of selective disadvan-tage, privation, violence and exclusion in the service of capitalistic developmentboth at home and overseas.85

The masking of the juridical construction of privilege, dependency and vulnerabil-ity is particularly salient for climate justice. The disembodiment at work in the con-struction of legal subjectivity is a problematic precondition for equality, fairness orjustice. As Halewood puts it:

The liberal understanding of person, property and the physical body relies upon an importantconceptual structure: the radical dichotomy between subject and object premised on thedecontextualisation of the subject from the world of objects, including the body as an objectrather than … integral to personhood. The separation of subjects from objects, by shearingall distinguishing embodiment or particularity, permits the formal equality of legalsubjects.86

Thus, legal equality – like liberal legal justice more generally – is fundamentally abstract –selectively blind to embodied and concrete particularities.87 While some level of gen-erality is important (necessary perhaps) for the achievement of predictable and relativelystable curial judgment – a key feature of the rule of law – it remains profoundly

Netherlands International Law Review 171, 173–74; and the reports of the Special Rapporteurto the Commission on Human Rights’ reports on the dumping of toxic waste: Commission onHuman Rights (20 January 1998).82. See, e.g., LWestra, ‘Environmental Rights and Human Rights: The Final Enclosure Move-ment’ in R Brownsword (ed.),Global Governance and the Quest for Justice. Volume 4: HumanRights (Hart Publishing, Oxford 2004), 107–19.83. This is increasingly apparent under the pressures of recent austerity doctrine.84. A Anghie et al., The Third World and International Order: Law, Politics and Globaliza-tion (Martinus Nijhoff, Boston 2003); S Marks, ‘Empire’s Law’ (2003) 10 Indiana Journal ofGlobal Legal Studies 449–65.85. Marks (n 84).86. Halewood (n 44) at 1340, original emphasis.87. C Douzinas and A Gearey,Critical Jurisprudence (Hart Publishing, Oxford 2005) at 127–8.



problematic that the liberal juridical scheme rests upon a foundational commitment toan ultimately impossible excision of both body and social circumstance.

Thus, far from emerging from this analysis as a universal human being able to stand forus all, the disembodied autonomous subject of law emerges as a strangely mutilated and‘unencumbered’ entity.88 It is most unlike the core victims of climate injustice – women,children and other marginalized human groups, non-human animals and living ecosys-tems. Indeed, the disembodied liberal legal subject is relatively invulnerable except in sofar as there is a threat to its autonomy.89 Vulnerability – conversely – is assumed to be thecharacteristic of particular, identifiable (‘stigmatized’90) groups of ‘others’, and is con-structed in a way that disguises its social and institutional production.91

Directly related to these highly patterned distributions of privilege and vulnerabil-ity is the fact that the corporation is a far better fit for the central trope of the liberallegal subject than is any human being – even a white, property owning Europeanmale. The paradigmatic legal subject is, as we have seen, the very construct of aself-authorizing autonomous individual possessing a disembodied rationality92 – the‘man’ whose very citizenship arose directly from his contractual and proprietary rela-tions93 and whose rights took relentless priority as vigorous revolutionary energiescrystallized in the institutional rights-settlements of Europe and the United Statesof America.94 The legal ‘man’ – or juridical individual – is the ideal95 figurationfor a liberal capitalist juridical order. Yet, notwithstanding the fact that historicallyidentifiable groups of humans constructed this subject in their own imagined imageand have disproportionately benefitted from its deployment, this construct is not ulti-mately like the living human being:96 its specific combination of relative

88. C Douzinas, The End of Human Rights (Hart Publishing, Oxford 2000) at 238.89. M Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’(2008) 20 Yale Journal of Law and Feminism 1–23.90. See, for more on this dynamic in international human rights law, D Otto, ‘Disconcerting“Masculinities”: Reinventing the Gendered Subject(s) of International Human Rights Law’ in DBuss and A Manji (eds), International Law: Modern Feminist Approaches (Hart Publishing,Oxford 2005), 105–29; D Otto, ‘Lost in Translation: Rescripting the Sexed Subjects of Inter-national Human Rights Law’ in A Orford (ed.), International Law and its Others (CambridgeUniversity Press, Cambridge 2006), 318–56.91. Fineman (n 89); M Fineman, The Autonomy Myth: A Theory of Dependency (The NewPress, New York 2003).92. This construct is, moreover, the author of the entire liberal political order, which accord-ing to liberal mythology, emerged in the simultaneous birth of rights and states, inaugurated bythe primordial contract of Locke, Hobbes and Rousseau – a mythic device common to all threeseminal philosophers of liberalism.93. JR Short, Imagined Country: Society, Culture and Environment (Routledge, London1991) at 34–5; Green (n 64) at 252.94. Indeed, the entire history of the ‘rights of man’ stands as a testament to the relentless priorityof the interests of propertied men – though space does not permit here a fuller exposition on thepoint, it is well established in careful historical studies: see, e.g., M Ishay, The History of HumanRights: From Ancient Times to the Globalization Era (University of California Press, Berkeley2004). For an eloquent account of the operation of social movement energies and institutionalcapture, see N Stammers, Human Rights and Social Movements (Pluto Press, London 2009) andN Stammers, ‘Social Movements and the Social Construction of Human Rights’ (1999) 21(4)Human Rights Quarterly 980–1008.95. In both the colloquial and the Weberian sense.96. A Grear, Redirecting Human Rights: Facing the Challenge of Corporate Legal Humanity(Palgrave Macmillan, Basingstoke 2010) – especially Chapters 3 and 4.



disembodiment and its seamless match with capitalist ideology combine to suggestthe corporation (not the human being) as its perfect instantiation. The corporation(unlike fleshy, corporeally specific embodied human beings) suffers from no gapbetween itself and the disembodiment of the liberal legal perspective. The corporationis also, as Neocleous has argued, the very personification of capital itself.97

A critical account of liberal legal subjectivity thus links deep identifiable impulsesof disembodiment and highly selective excisions of social context with well-rehearsedand longstanding patterns of injustice, of which climate injustice is a powerful (andincreasingly fatal) manifestation – perhaps even the ultimate outworking. Just assignificantly, these patterns were historically – and are contemporaneously – enactedthrough the juridical privileging of the corporate form.

Such an account points beyond seeing climate injustice as a symptom of climatechange (as if simply ‘caused by’ it) – and points beyond the need simply to identifyand hold accountable ‘those’ ‘who’ are ‘responsible’ for climate change. The analysishere suggests systemic structural conditions far exceeding the Declaration’s formula-tion of the problem. The historical dimensions of climate injustice – and their directcontinuities with the structure and materialities of both liberal legal subjectivity andthe structural unevenness of the contemporary global order – point to the importanceof climate justice advocacy directly addressing ‘relations between imperial and sub-ordinate states’98 and the violent and oppressive hierarchies of being encodedin the juridical architecture conditioning those relations.

What implications does a critical account of law and legal subjectivity have, then,for the ability of climate justice to resist co-option? Perhaps the best way to answerthis question is to focus on human rights (a central component of the ‘climate justice’agenda), for human rights are a core site in which the dynamics just identified emergeto co-opt even that most humanity-centred of discourses when its energies are givenlegal institutional form.

2.2 Liberal legal subjectivity and the ‘co-option’ of human rights:implications for ‘climate justice’

Having traced the links between legal subjectivity and the juridical privileging of thecorporate form, I now want to reflect on the relationship of all this to the contempor-ary situation of international human rights law and discourse. In the introduction tothis article, I suggested that law’s constitution of legal subjectivity has profoundimplications for policy-making strategies that invoke (as the Declaration on ClimateJustice broadly does) human rights-based approaches – in part because of the exclu-sive construction of the ‘human’ of law (including human rights law) and in partbecause that exclusive (disembodied) construction, as argued above, privileges thecorporate form. In the context of international human rights law and discourse, it isincreasingly apparent that corporate privilege has a systemic influence. But in orderfully to appreciate the significance and seriousness of this for human rights (andfor climate justice), it is essential to contextualize our reflections against the globaldominance of corporations and the radical degree of global unevenness now charac-terizing the current world order.

97. M Neocleous, ‘Staging Power: Marx, Hobbes and the Personification of Capital’ (2003)14 Law and Critique 147–65.98. Woods (n 23) at 12.



2.2.1 Context: global unevenness and the relentless priority of corporations

Global unevenness is already well recognized in relation to climate change. Accord-ing to the Intergovernmental Panel on Climate Change (IPCC), ‘the impacts ofclimate change will fall disproportionately upon developing countries and poorpersons within all countries, and thereby exacerbate inequities in health status andaccess to adequate food, clean water, and other resources’.99 This well-evidencedunevenness, it should be noted, is entirely consistent with critical accounts of juridicalsubjectivity: women, children, the elderly and indigenous populations are most likelyto suffer the worst impacts – directly and indirectly because of patterns of discri-mination and socio-economic marginalization and/or exclusion.100 These patternsof exclusion directly reflect the dynamics of privilege and oppression associatedwith corporate sovereignty and personification. It is in the context of globalization,however, that these patterns most fully reveal their contemporary and future implica-tions – for it is here that the dominance of the corporate juridical subject has ripenedinto a hegemonic closure amounting to nothing short of the wholesale commodification/technification of the social spheres101 and of ‘nature’ itself.102

Corporate power now dominates global political space. The overwhelming major-ity of states (as an extensive body of research and scholarship reveals) are committedto (or – as is the case for many states in the Global South – rendered forcibly captiveto) the market imperatives of neoliberal capitalism. Beck notes that the few countriesin the global South that have attempted to reject neoliberal strictures have been effec-tively forced to submit under pressure from the World Bank and Western fundingbodies,103 while Richardson has demonstrated that the World Bank and the IMFhave put most pressure on precisely those countries where poverty is most rife, byinsisting on structural adjustments such as deregulation, privatization and the removalof human rights protective policies.104 Such evidence raises an important questionconcerning the degree to which international organizations such as the IMF, theWorld Bank, and the WTO – as well as neoliberal states and their political elites –are simply ‘midwives’ to a profoundly unjust order of power105 – a question thatbecomes all the more significant when we recall that WTO rules were shaped tosuch an influential degree by global corporations that the rules have been described

99. Intergovernmental Panel on Climate Change, Climate Change 2001: Synthesis Report:Contribution of Working Groups I, II, and III to the Third Assessment Report of the Intergo-vernmental Panel on Climate Change (Cambridge University Press, Cambridge 2001) at 3.33.100. See, e.g., the Women, Gender Equality and Climate Change Factsheet, published by UNWomenWatch, and the literatures cited therein. Available at: <http://www.un.org/womenwatch/feature/climate_change/downloads/Women_and_Climate_Change_Factsheet.pdf> accessed 5December 2013.101. A Grear, ‘Human Rights – Human Bodies? Some Reflections on Corporate Human RightsDistortion, the Legal Subject, Embodiment and Human Rights Theory’ (2006) 17 Law andCritique 171–99.102. See, e.g., RG Lee, ‘Look at Mother Nature on the Run in the Twenty-first Century:Responsibility, Research and Innovation’ (2012) 1(1) Transnational Environmental Law105–17; G Böhme, Invasive Technification: Critical Essays in the Philosophy of Technology(Cameron Shingleton (trans)) (Bloomsbury, London 2012).103. Beck (n 21) at 123.104. JL Richardson, ‘Contending Liberalisms: Past and Present’ (1997) 3 European Journal ofInternational Relations 5–33 at 21.105. Beck (n 21) at 120.



as the formalization of global corporate power.106 The stark bottom-line reality ofcontemporary globalization, upon which its theorists agree ‘regardless of their disci-plinary, analytic or ideological inclinations’, is the fact that ‘corporate global rule isalready here’.107 It is unsurprising therefore, that there should be an increasinglyunequal imposition of peril and privation in the globalized context – and that thiswould reveal itself as a radically differential positioning in the face of climate change:climate injustice directly traces long-established patterns of global economic injustice.In the neoliberal world order, the poorest peoples and nations of the earth are forceddisproportionately to bear the deepening social costs of capitalism – including the toxicsocial and environmental fallouts now manifesting as climate crisis.

Given our concern with climate justice and injustice, it seems important to considerin a little more detail, albeit briefly, the implications of the corporate juridical form’sadvantage over human beings in such an uneven world order. The corporation is anartificial body, like the Hobbesian state, in which the ‘“corporeal interchangeability”[of its members] divests it of the vulnerability that accompanies a corporeally specificbody … [producing a] transmogrification of that corporeality specific vulnerabilityinto a “common Power”’.108 As argued above, the trope of the autonomous juridicalsubject fits the corporate form far better than it fits the messy vulnerable socio-corporeality of the living human being. There is a sense – indeed – in which, forlaw, the human being is ‘infinitely more fictitious’ than the corporate form,109

which enjoys a far greater degree of ‘fit’ with the structural and ideological featuresof the liberal juridical mythos. This tends to mean that corporeally specific humanbeings are systemically (and unevenly) disadvantaged in law’s disembodied formalschematic – a fact amplified in the globalized order because the transnational corpo-rate form deploys protean modes of mutation unavailable to corporeally specifichuman beings in order to evade liability for harms.110 Thus, while the globalizedworld remains perilously full of policed borders, state-corporate surveillance andother forms of bodily control for vulnerable, corporeally-specific embodied humanbeings – including those attempting to protest or to flee the fallouts of climate change,socio-economic privation, resource conflicts and other exigencies –the globalizedworld remains relatively borderless for corporate capital.111 It is particularly telling,moreover, that corporate accountability is most difficult of all to obtain for corpora-tion-enacted harms to marginalized human beings, non-human animals, other livingsystems and the environment – and most especially for violations of human rightsas opposed to violations of environmental law.112

106. R Nader, ‘Introduction’ in L Wallach and M Sforza, The WTO: Five Years of Reasons toResist Corporate Globalization (Seven Stories Press, New York 1999) at 7.107. Shamir (n 17) at 92.108. SY Whitney, ‘Dependency Relations: Corporeal Vulnerability and the Norms of Person-hood in Hobbes and Kittay’ (2011) 26(3) Hyptatia 554–72 at 557 (original citations omitted,emphasis added).109. C Douzinas, ‘Justice and Human Rights in Postmodernity’ in C Douzinas and A Tompkins,Understanding Human Rights (Mansell, London 1996), 115–37 at 122, emphasis added.110. See, for more, J Dine, ‘Jurisdictional Arbitrage by Multinational Companies: A NationalLaw Solution?’ (2012) 3(1) Journal of Human Rights and the Environment 44–69.111. Baxi (n 42) at 247.112. See P Simons, ‘International Law’s Invisible Hand and the Future of Corporate Account-ability for Violations of Human Rights’ (2012) 3(1) Journal of Human Rights and the Environ-ment 5–43. By way of example, Simons points to the concern expressed by Richard Skinner,CEO of Rio Tinto, that voluntary corporate self-regulation is insufficient to address climate



It is, in the light of this, especially troubling that the immense advantages accruingto corporate legal subjects are further amplified by the uncanny ability of corporateactors continuously, adaptively and reflexively to adopt the guise and languagesof putative critiques and counter-values (such as ‘human rights’; ‘sustainability’;‘sustainable development’). Corporate discursive strategies, as recent history reveals,frequently co-opt such languages, thereby reducing their resistive potential. Thecurrent situation of international human rights law serves as a particularly salutaryexample – especially for a language and concept of ‘climate justice’ drawing sodirectly from human rights law and approaches.

2.2.2 Insights from a fractured discourse: the corporate colonizationof international human rights law

The lesson to be drawn for ‘climate justice’ from the situation of international humanrights law can be stated in rather stark terms: if the realization of an order of interna-tional human rights for embodied vulnerable human beings has become dependentupon the prior recognition of an order of rights for global capital, as Baxi (amongothers) argues that it has,113 then there is a genuine risk that ‘climate justice’ asboth language and concept, particularly as it gains traction,114 will become a targetof corporate desire.

Baxi has established, in a masterful sociological account, that an order of rights forcapital has indeed already become a prerequisite for the realization of internationalhuman rights goals.115 He argues that the entire Universal Declaration of HumanRights (UDHR) paradigm stands ‘imperilled’ by the development of a new paradigmof ‘trade-related, market-friendly human rights (TRMFHR)’, stating that the UDHRparadigm is ‘being steadily, but surely, supplanted’ by a paradigm that

seeks to demote, even reverse, the notion that universal human rights are designed for theattainment of dignity and well-being of human beings and for enhancing the security andwell-being of socially, economically and civilizationally vulnerable peoples and commu-nities. The emergent paradigm insists upon the promotion and the protection of the collectivehuman rights of global capital, in ways which ‘justify’ corporate well-being and dignity evenwhen it entails continuing gross and flagrant violation of human rights of actually existinghuman beings and communities.116

change, but when asked by Simons about human rights, expressed the view that human rightslegal norms place an undue regulatory burden and cost on corporate actors (at p. 6 (n7)). Thisbifurcation, Simons suggests, indicates a ‘considerable unevenness of treatment between humanrights and environmental concerns’ (at p. 6).113. Baxi (n 65) and (n 42).114. A Grear, ‘Multilevel Governance for Sustainability: Reflections from a Fractured Dis-course’ in New Zealand and the EU: Contested Futures: Sustainability, Governance and Interna-tional Human Rights (2010) Europe-New Zealand Research Series 73–141.115. Baxi (n 42) at 256–7. For example, the right to health is thought best served by over-protection of the research and development rights of the pharmaceutical and diagnostic indus-tries; progress in female reproductive autonomy, sustainable development and the managementof environmental challenges are all thought best served by, among other things, the protectionof corporate property interests in various technologies. It is important, additionally, to remem-ber that although economic resilience is an important prerequisite for human rights realizationand that healthy markets are important for human rights realization, there is a distinctionbetween this and the establishment of a pre-eminent order of rights for global capital.116. Ibid., at 234.



Baxi argues that a serious comparative sociology of human rights ‘leaves us with noother credible option’ but to conclude that human rights law and discourse has alreadybeen ‘critically appropriated by global capital’.117 Evans and Ayer likewise argue thatthe very idea of universal human rights is currently forced to serve a hegemonic neo-liberal approach that has effectively ‘co-opted’ human rights ‘in support of processesassociated with capitalist globalization’.118

These bleak conclusions strongly suggest that languages such as ‘climate justice’ –indeed any progressive counter-value to the injustice of the neoliberal global order –cannot remain immune from co-optation and/or colonization of its core meaning. Thisobservation is especially salient for ‘climate justice’ because of its reliance uponhuman rights as a central component of its vision. If human rights standards arealready colonized through a powerful neoliberal transmutation of internationalhuman rights law and discourse, then the call for climate justice already contains,at its heart, the juridical receptors for corporate viral capture.

The dangers implied by such realities are immense. It is worth remembering thatthe international human rights regime is intrinsically ill equipped to prevent humanrights violations justified in the name of ‘national interest’ and/or ‘national security’objectives.119 This intrinsic weakness was dramatically exacerbated post 9/11120 –

and is likely to become more problematic as climate change itself becomes increas-ingly securitized.121 Moreover, because traditional state justifications for the limita-tion or violation of human rights currently operate in a setting where nationalinterest is increasingly defined by the imperatives of neoliberalism, human rights –and other values that collide with market imperatives – are likely to become evenmore vulnerable. Santos suggests that the ‘global panorama of human rights practicesis very sinister and gives little cause for optimism’,122 and argues that:

Because of their private character … economic actors can commit massive violations ofhuman rights with total impunity in different parts of the world … [and b]ecause such actorsare at the core of the loss in economic national sovereignty, their actions, no matter howoffensive to human rights, are unlikely to collide with consideration of national interest orsecurity that might otherwise prompt the corrective or punitive intervention of the state.123

Even those agents who might be assumed to offer resistance, such as NGOs, areincreasingly forced to operate, as Baxi has argued, from an essentially captive posi-tion ‘within the general imperatives of [the] ideology’.124 NGOs are caught up indynamics of deepening dependency upon markets (as indeed are mainstream

117. Baxi (n 65) at 147.118. T Evans and AJ Ayers, ‘In the Service of Power: The Global Political Economy of Citi-zenship and Human Rights’ (2006) 10 Citizenship Studies 239–308, abstract, emphasis added.119. Baxi (n 42) at 266.120. For a timely discussion of the historical significance of the state of exception and its con-temporary status, see G Agamben, State of Exception (K Attell (trans)) (University of ChicagoPress, Chicago and London 2005).121. See D Nibert, ‘The Fire Next Time: The Coming Cost of Capitalism, Animal Oppressionand Environmental Ruin’ (2012) 3(1) Journal of Human Rights and the Environment 141–58 at155–58. He notes that the CIA, in 2009, created a Centre on Climate Change ‘to monitor thenational security impact of global warming’ (at 156) and that similar anxieties and preparationscan be seen in other nations.122. See De Sousa Santos (n 16) at 263–5.123. Ibid., 268 (emphasis added).124. Baxi (n 42) at 239.



strategies for climate change adaptation and mitigation). Baxi notes the tendency ofNGOs to organize themselves in market-led terms as economic actors in competitionfor economic resources, producing in the process (and in combination with otheractors such as funding bodies) a ‘human rights market rationality’,125 characterizedby ethically fraught practices, such as the ‘commodification’ of human suffering.126

The task of resistance becomes even more daunting when we consider the elusivenature of the power concerned. Beck points out that one of the strategic advantagesenjoyed by global capital is the power to refuse investment, thus effectively transform-ing economic power into an elusive politics of ‘side-effect’ – ‘domination by nobody’ –and a process in which the political meta-power of global capital is increased by thesense in which ‘“[n]obody” is doing politics – yet they are doing so in a very effectiveand often deliberate way’.127 Political and legal accountability become all the moredifficult to achieve, because, as Beck points out, ‘the political meta-power “of capital”results from the collective impact of very heterogeneous actors, markets, capitalflows, supranational organizations and so forth, each of which understands itself tobe making decisions in its own interest on the basis of economic considerations’.128

This complex heterogeneous collection of actors produces, however, a powerful ideo-logical convergence with a deeply homogenizing effect on the policy choices ofgovernments, as Evans and Ayers note.129 For Beck, this amounts to the ‘economicself-transformation of politics in the sense of self-colonization’.130 This complex pro-cess has produced a redefinition of the political on a global scale, marked by the pro-duction of frameworks specifically designed to ensure a long-term commitment to theneoliberal path of development, and ensuring that ‘disciplinary neoliberalism’ has setthe future (including the future of human rights and climate adaptation and mitigation)in capitalist terms by preventing future governments from undoing commitments toneoliberal patterns of power.131 As noted above, the state retains an indispensableposition in the global architecture foundational to globalized corporate power – andthe state’s complicity is arguably increasingly exposed by social movement protests-directed against the social and ecological fallout of neoliberal policy – and, corre-spondingly, by the state’s increasingly repressive ‘public order’ practices.132

Such realities present deep challenges to the language and discourse of ‘climatejustice’, but it might be tempting to object that climate justice – because it focuseson quintessentially material concerns and questions of relative position – will beequipped to resist co-option. In response, it should be said that socio-economichuman rights were always intended to provide baseline socio-economic standards,guarantees of welfare beneath which no human being should be allowed to fall.The trade-related market-friendly paradigm of human rights, however, reflects a sig-nificant decline or retraction of the state’s traditional redistributive role. Indeed, asBaxi argues, such a trajectory ‘[converts] the mandate of “progressive realization”

125. Ibid., 216–20.126. Ibid 223. (Indeed, Baxi argues that the very notion of the ‘global’ carries ‘connotations ofthe commercialization of humanity’: ibid, 240.)127. Beck (n 21), 117.128. Ibid.129. Evans and Ayers (n 118) at 293.130. Beck (n 21), 118.131. Gill (n 20) at 48.132. For a recent exposition, see Take Back the Streets: Repression and the Criminalization ofProtest Around the World (ACLU, New York 2013).



of social, economic, and cultural rights of the people into an ongoing cruel hoax’.133

If a category of human rights inherently focused upon socio-material concerns can beso emptied out, is there any compelling reason to think that ‘climate justice’ can eludeco-option – particularly in the light of the dominance of market-based ‘solutions’ forclimate change? Baxi’s examples give little room for optimism on the point. He notes,for example, that the war against hunger (surely, a core ‘climate justice’ concern) inthe 1998 Rome Declaration on the Right to Food was implemented as an integratedsystem of food security dominated by a small group of multinational food cor-porations; that the struggle against homelessness, in the 1998 UN Social Summit(again, a core ‘climate justice’ concern) became a set of ‘mandates authorizing awhole range of human rights-violative practices of the construction industriesand urban developers’; that ‘sustainable development’ (again, at the heart of ‘cli-mate justice’ discourse) became the launch pad for massive projects primarily ben-efiting the imperatives of foreign investment and the ‘promotion and protection ofcorporate governance “greenwashing practices”’, while the United Nations Devel-opment Programme (UNDP) inspired Global Sustainable Development Facility issupported by money from ‘some of the most egregious multinational enterprisecorporate human rights offenders’.134 It is difficult to believe, in the light of allthis, that climate justice will be inherently resistive to co-option, perhaps especiallyas the more ‘system-critical’ aspects of the wider movement encounter trajectoriesof climate justice ‘mainstreaming’ as the concept gains institutional traction (asnoted above).

The future prospects for both climate justice and for human rights within the inter-national legal order become even more troubling in the light of the consolidation ofTNC rights in treaty regimes that in effect consolidate global corporate juridicalprimacy. Evans and Ayers note that:

property and investment rights are protected in ‘exquisite detail’ under [the North AmericanFree Trade Agreement (NAFTA), the General Agreement on Tariffs and Trade (GATT)] andmore recently the WTO – with 20,000 pages of GATT/WTO regulations and 1,400 articleswithin NAFTA specifying exact rules to protect the rights of capitalist corporations.135

More recently, the secrecy-shrouded proposed Trans-Pacific Partnership (TPP) agree-ment has been attracting vigorous criticism for its (state supported and facilitated)grant of even more extensive corporate political power: foreign companies will beempowered to challenge national laws or regulations in a private court on a widerrange of issues than is currently the case under NAFTA.136 The negotiations havebeen kept shrouded in secrecy, making corporate advantage even more immune

133. Baxi (n 42) at 248.134. Ibid., at 250.135. Evans and Ayers (n 118) at 293.136. See, for examples of the media coverage: ‘Obama Faces Backlash Over New CorporatePowers in Secret Trade Deal’, The Huffington Post (posted 8 December 2013 – updated 16 January2014), available at <http://www.huffingtonpost.com/2013/12/08/tpp-trade-agreement_n_4409211.html> accessed 17 January 2014; ‘More Power to Corporations to Attack Nations: Extreme For-eign Investor Rights and Enforcement would Promote Offshoring, Attacks against Our Laws’,Global Trade Watch, available at <http://www.citizen.org/Page.aspx?pid=5411&frcrld=1>accessed 17 January 2014; J Eidelson, ‘Trans-Pacific Partnership: Larger than NAFTA?’ Salon(12 June 2102), available at <http://www.salon.com/2012/06/14/trans_pacific_partnership_larger_than_nafta/> accessed 17 January 2014.



from proper democratic scrutiny – the details of the proposed TPP were revealed byonline leaks of the text of the Partnership agreement.137

Finally, corporations have also argued, with increasing success, that they are suitablehuman rights beneficiaries or ‘victims’138 – another development presaging futurepotential arguments based on claims of ‘corporate climate justice’. The likely negativeimpact of such discursive moves can readily be anticipated, for example by noting theexample of the ‘corporate human rights’ of commercial free speech, privacy and honourdefended in corporate Strategic Law Suits Against Public Participation (SLAPPS) – ineffect, a way of suing people for speaking out, and ‘effectively denying the equality ofcitizenship so fundamental to informed decision making … [while making] economicinterests … the superior voice in determining public policy’.139

To reapply Baxi’s words, it may be that corporate rights will become an assumedprerequisite, not just for the ‘the promotion and protection of some of the most cheri-shed contemporary human rights’140 but for the achievement of climate justice – withpotentially damaging or even fatal future effect.141

2.3 Shaping a reflexive critical awareness for ‘climate justice’

The third signal emerging from these reflections and foreshadowed at the start of this arti-cle can now be briefly restated as follows: the highly adaptive dominance of the corporatejuridical subject reveals the vital importance of ‘climate justice’ in making immanent to itsconceptualization the need for reflexive critique – including critical engagements withlaw, state power and the constitution of legal subjectivity. The climate justice approachwill also need to reach beyond the somewhat static nature of traditional conceptionsof justice and notions of distributive equity (important though these are) and to forgeitself as a consciously adaptive and critically reflexive response to climate injustice.

137. See, e.g., Environmental provision leak: <http://wikileaks.org/tpp-enviro/pressrelease.html> accessed 17 January 2014; IP provisions leak: <https://wikileaks.org/tpp/pressrelease.html> accessed 17 January 2014. For brief academic commentary on the environmental provi-sions see J Kelsey, ‘TPPA Environment Chapter and Chair’s Commentary Posted byWikiLeaksIssues for NZ’, available at <http://wikileaks.org/tppa-environment-chapter.html> accessed 17January 2014).138. M Addo, ‘The Corporation as a Victim of Human Rights Violations’ in M Addo (ed.),Human Rights Standards and the Responsibility of Transnational Corporations (Kluwer,The Hague 1999).139. GW Pring and P Canan, SLAPPs: Getting Sued for Speaking Out (Temple UniversityPress, Philadelphia 1996) at 221, cited by Baxi (n 42) at 260. See also F Donson, Legal Inti-midation: A SLAAP in the Face of Democracy (Free Association Books, London 2000).140. Baxi (n 42) at 256–7.141. Baxi points to the profound harms caused by corporate privilege to the ‘human rights ofhuman beings everywhere’ (n 42) at 258. These harms include the way in which corporationshave: corrupted national regimes aimed at social and human development; engaged national autho-rities in the co-option, corruption, or coercion of human rights communities whose activities sub-vert the imperatives of globalization; influenced law, medicine, media, science and education; andcreated ‘human, bio, eco and genetic hazards…without… obligation for reparation, restitution andrehabilitation’: ibid at 258–61, citing U Baxi, ‘Justice as Emancipation: The Legacy of BabasahebAmbedkar’ in U Baxi and B Parekh (eds), Crisis and Change in Contemporary India (Sage, NewDelhi 1995), 122–49. Kinley and Joseph note that, while there is scope for corporations to have apositive impact, corporate activity has had a genuinely detrimental impact on human rights pro-tection worldwide: D Kinley and S Joseph, ‘Multinational Corporations and Human Rights:Questions about Their Relationship’ (2002) 27 Alternative Law Journal 7–10.



Let us add a little more substantive content to the point just made. One of thegreat strengths of the language and concept of ‘climate justice’ is that it quite natu-rally draws our attention to the material unevenness of the social world: socio-economic disparity is a core concern – and is inextricably linked with the notionof environmental justice. ‘Climate justice’, however, particularly in the light of acritical reading of the pivotal role of a politics of disembodiment in the productionof climate injustice – will need to insist that the human subject is to be understood,not as the autonomous, abstract human of traditional international human rightsuniversalism,142 but as a living, flesh and blood being ‘ineluctably embeddedwithin the messy, contextual, concrete, fleshy imperatives, potentialities and limita-tions of a fully embodied, particular and collective life – a life lived fully open tothe draughts, predations and complexities, moreover, of a distinctly uneven globa-lized world’.143 The materialities of this unevenness are symptomatically marked144

by the production of savage levels of distributive inequality and forms of highlypatterned climate injustice, which include continuing forms of global environmentalracism.145 Sustained reflection on the patterned disparities of climate injustice sug-gests that climate justice approaches should explicitly embrace what Radhakrishnanhas called the theoretical centrality of unevenness.146 We can be even more catego-rical: climate justice needs to embrace, explicitly, the theoretical centrality of atilted ideology that systematically and adaptively privileges corporate capitalistpower.

This argument returns us full circle to Turner’s point concerning the compli-city of law and legal design in environmental degradation. It also directly impli-cates the ‘law and politics of disembodiment/embodiment’147 lying at the root ofthe juridical (and material) advantages accruing to the capitalist corporation as alegal subject – not only through the mechanism of legal personification, but alsothrough the structural and ideological intimacy between corporate juridical subjec-tivity and the construct of the disembodied, rationalistic, autonomous ‘natural’‘man’ of law.

In short, sustained reflection on climate injustice points us directly to the historicaland contemporary production of the asymmetric relations of neoliberal globalizationand to the distinctively patterned relationship between corporate juridical privilegeand climate change as a crisis of human hierarchy. There is a profound need to seeprivilege and the systemic disadvantages of hierarchical ‘otherness’ as being – toborrow Radhakrishan’s rich term – ‘co-symptomatic’.148 Radhakrishnan argues that:

it is only on the basis of a theoretical ethic [based on the ‘symptomatic immanetization ofunevenness’ (Radhakrishnan, 2003, at vi)] that [the privileged] can be persuaded to feel,perceive and understand [their] reality as an inhabitant symptom of global unevenness – as

142. Otto, ‘Disconcerting “Masculinities” and ‘Lost in Translation’ (n 90).143. A Grear, ‘Vulnerability, Advanced Global Capitalism and Co-symptomatic Injustice:Locating the Vulnerable Subject’ in MA Fineman and A Grear, Vulnerability: Reflections ona New Ethical Foundation for Law and Politics (Ashgate, Aldershot 2013), 41–60 at 53, draw-ing on R Radhakrishnan, Theory in an Uneven World (Blackwell, Oxford 2003).144. Radhakrishnan (n 143).145. L Westra and BE Lawson, Faces of Environmental Racism: Confronting Issues of GlobalJustice (Rowman and Littlefield, Oxford 2001).146. Radhakrishnan (n 143).147. Baxi, ‘Foreword’ in Grear (n 96) at xvi.148. Radhakrishnan (n 143) at vii.



much of a symptom as the abject and voiceless poverty of a homeless being anywhere inthe world. … [W]ithin the etiology as well as the pathology [of capitalism], both the[lifestyle of the privileged] and the instant-to-instant contingency of [the socio-economicallydisempowered should be understood to be] co-symptomatic.149

It is now fundamental to embrace the centrality of a pre-loaded, part-calculated(agency is an extremely complex theme), multi-sectoral, systemic, evolutive, dynamicand colonizing form of global asymmetry amounting to a process of state-assisted glo-bal corporate predation. Calling on the notion of the co-symptomatic is a powerfulway to emphasize the global production of relations of injustice. It points directlyto the pathological nature of subtending and evolving asymmetries and underlinesthe immense destructiveness enacted by a juridical schema through which individualembodied human beings are forced into mythic equivalence with the corporate perso-nification of capital (no matter how large, dispersed or powerful corporations may inreality be).

Thus, while ‘climate justice’ points towards the relational position of humanbeings in a world in crisis and towards the pressing need for fairness –including fair-ness in relation to shared ecosystems – sustained reflection on climate injustice pointsto the co-symptomatic nature of the patterned, pathological forms of interaction char-acterizing advanced corporate capitalism and its relationship with climate change. Thenotion of the co-symptomatic, moreover, captures a sense of dysfunction not often co-thought with justice as fairness or with notions of equitable access to sustainabledevelopment and so forth. Climate injustice focuses direct attention upon the perversedynamics of the globalized juridical order, where the economic power of global busi-ness has become a form of ‘political meta-power’.150

Finally, the concept of the ‘co-symptomatic’, with its implication of an etiology,points up climate injustice as process – to the ongoing set of flows and interactionsdominated by transnational conglomerations of corporate power, the complexity oftheir relationships with states, and to the juridical mutability enabling TNCs, in par-ticular, to frustrate legal attempts to control them.151 The concept also points towardsthe temporal dimensions of climate injustice rooted in the violent colonial past andexpressed in its continuities with the neo-colonial order of neoliberal power. ‘Climatejustice’, if it can respond to – and keep responding to – the colonizing forms ofmutability implicated by this account, will be strengthened by critical reflexivity. Itwill be enabled to exercise a continuous, critically informed, epistemic watchfulnessconcerning the adaptive constitution of climate injustice. Climate justice will be moretheoretically empowered to respond to climate change as a manifestation of a deepen-ing crisis of human hierarchy – a crisis in which law and the constitution of legalsubjectivity have long been structurally complicit.

3 POLICY RECOMMENDATIONS/DIRECTIONS

The account offered here implies certain corollary policy concerns and priorities.I will address each of these briefly, doing little more than pointing up their importanceas future research priorities for ‘climate justice’.

149. Ibid., emphasis added.150. Beck (n 21), 117.151. See, for a discussion of the problems presented by the form of the TNC, Dine (n 110).



3.1 The need to ‘re-engineer’ the corporation and challenge the contextsof its dominance

Since the structural design of the corporation and the juridical privileging of thecorporate form are so clearly implicated by historical and contemporary patterns ofclimate injustice, it follows that ‘re-engineering the corporation’ should form a corepolicy focus for climate justice initiatives. (Indeed, this policy recommendation issubstantially strengthened by the recent revelation that 60% of all GHG emissionsare caused by a mere 90 corporations.152)

While various institutional approaches to the issue of corporate accountabilityalready exist, the vast majority of them rely on an inadequate corporate voluntarism153

(itself a clear sign of the influence of corporations upon law and governance regimesand policies). The present argument has emphasized that the form of the corporationas a juridical subject is directly related to the corporations’ complexity as a target foraccountability.154 This is an issue in need of urgent and explicit attention – attentionmoving beyond voluntarism as a strategy aimed at garnering corporate compliance.Climate justice policy work should therefore focus directly upon the systemic strate-gic advantages accruing to the corporate form and how to rebalance the global juri-dical order. This will require policy making to draw upon the work of legalscholars approaching the subject from various directions: devising new forms of ethi-cal shareholder mechanisms;155 assessing the prospects of multiple simultaneousactions in affected jurisdictions;156 re-designing national law conceptions of the cor-porate entity;157 refining understandings of corporate management duties to allow forsacrifice of profit in the public interest,158 or even internalizing within a company’sobjects direct duties embracing core climate justice concerns, and so forth. As wasargued above, reflection on climate injustice also points directly to the radically asym-metric realities of globalized inter-dependencies: the notion of co-symptomatic injus-tice. This suggests the need for an even more radical restructuring of transnationalcorporate responsibility – which will necessitate a direct confrontation with thoseforms of politics and policy so committed to protectionist neoliberalism. It impliesthe need for climate justice advocates to argue for placing a particular ethical burdenupon powerful corporations and others who benefit from the unevenness of the globalorder – and for the discourse to confront, perhaps more directly, the direction of con-temporary state policy and action. Co-symptomatic climate injustice suggests thatspecial state and corporate responsibility should be exercised towards the most

152. See <http://www.theguardian.com/environment/2013/nov/20/90-companies-man-made-global-warming-emissions-climate-change> accessed 10 December 2013.153. P Simons, ‘Corporate Voluntarism and Human Rights: The Adequacy and Effectivenessof Voluntary Self-Regulation Regimes’ (2004) 59(1) Relationes Industrielles/Industrial Rela-tions 101–141; Simons (n 112) (which argues that John Ruggie’s essentially voluntaristicscheme is utterly inadequate).154. S Joseph, Corporations and Transnational Human Rights Litigation (Hart Publishing,Oxford 2004); Dine (n 110).155. See, for a particularly topical example, S Wheeler, ‘Climate Change, Hans Jonas andIndirect Investors’ (2012) 3(1) Journal of Human Rights and the Environment 92–115.156. Dine (n 110).157. Ibid.158. See, e.g., the possibilities raised – even in relation to existing company law – byE Elhauge, ‘Sacrificing Corporate Profits in the Public Interest’ (2005) 80(3) New YorkUniversity Law Review 733–869.



impoverished, marginalized human beings and communities, those currently dispro-portionately bearing the climate fallout of neoliberal priorities (and whose oppressionis co-symptomatically related to corporate privilege in the juridical order). Minimally,climate justice advocates and policy makers could begin to make the arguments, toshape public consciousness, concerning the co-symptomatic formations of climateinjustice – and their mutable but persistent actuality.

3.2 The need to expand legal subjectivity

Addressing the vexed question of legal subjectivity’s exclusions should be considereda core imperative for the achievement of climate justice – in part because of the role oflaw in vesting the corporate juridical subject with the privileges that have enabledthe accumulation of such immense, unaccountable power – and in part because theconstitution of legal subjectivity has a foundational relationship with the fundamentalcommitments fuelling climate change and socio-economic injustice alike. Legalsubjectivity is a pivotal mechanism for the bestowal of significance in law. Addres-sing it directly is a highly strategic, practical way of working towards climate justice.

Some such strategies, of course, already exist. Stone famously argued that ‘trees’should have standing159 – and that the legal system should respond directly to theinterests of non-human constituencies of being. Indeed, this is now a growingtrend, in both scholarship and law – and as the example of New Zealand’s grant oflegal personhood to the Whanganui river reveals, granting rights to natural ‘objects’can directly empower marginalized communities and worldviews. In the case of theWhanganui, the local Maori iwi were appointed co-stewards, with the Crown, of theriver,160 a move providing the iwi with an unprecedented opportunity to express –through the mechanism of what could be conceptualized as a form of juridical ecologi-cal subjectivity – their traditional values and relationship with the river.

Another way to expand legal subjectivity is to operationalize the juridical agencyof human subjects more inclusively. Human beings are legal subjects, but as we haveseen, are often simultaneously marginalized by the combination of commitments anddynamics discussed earlier in this article. One way to achieve a more inclusive modeof human legal subjectivity is to aim for a radical diversification of advocacy and legalprocess practices as a way of ensuring ‘access to justice’ to a far wider range ofhuman (and potentially non-human) beneficiaries. One way, already noted, is tobroaden the rules of standing. Another way is to fundamentally re-imagine law’s epis-temic processes. Analogous arguments have been made, for example, by Code, whosefocus on new forms of epistemic responsiveness to diverse constituencies, includinghuman and non-human ecological subjects, promises a far-reaching transformation ofthe very idea of ecological justice. Code advocates new ways of hearing from a widerange of ‘situated’ positions – with conscious, reflexive attention to the politics ofepistemic location161 – and a provocative, self-questioning encounter with the radicalquestion of who ‘we’ think ‘we’ are. Thirdly, re-theorizing legal personhood as amore ecumenical and flexible construct or mechanism would provide the opportunity

159. C Stone, ‘Should Trees Have Standing? Towards Legal Rights for Natural Objects’(1972) 45 Southern California Law Review 450–87.160. <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10830586> accessed10 December 2013.161. Code (n 53).



for a critical and lively inclusive strategy of personification to figure in law, throughinitiatives both legislative and judicial.162 Given its turn to ‘law’ and to advocacy of a‘strong rule of law approach’, there is a genuine need for future climate justice policyobjectives to be informed by a highly literate, critical engagement with the nature androle of law and legal concepts. The history of corporate personification stands asparticularly vivid testimony to the importance of meaningful normative engagementwith questions of legal subjectivity and the ways in which it is relevant to climatein/justice issues.

3.3 The need to diversify agency

Strongly related to the arguments just offered, there is a need to break down the actor/acted-upon agency binary so fundamental to policy languages. Agency is normallyunderstood, in any case, to be rational agency (which imports, in a subtle but signifi-cant way, the liberal, disembodiment-centred exclusionary implications of rationalitydiscussed above). Notions of agency play a fundamental role in the mediation ofaccess and marginalization – in part, through the operation of assumptions/patternsof understanding intimately imbricated with related patterns of socio-economic andother forms of disparity. These, in turn, effectively ‘select’ access patterns, sincesocio-economic and other resources are fundamental for participation when centresof participation reside in public, institutionalized settings and/or require time, traveland other forms of investment in order to engage them.

The need to diversify agency is a key implication and goal of the climate justicestrategy, particularly as operationalized by Mary Robinson and the Mary RobinsonFoundation – Climate Justice.163 Clearly, climate justice policy embraces the impor-tance of hearing from a wide and inclusive range of situated human communities.However, the diversification of agency should ideally move beyond notions of ‘givingvoice’ to such communities, for such communities already speak. They are alreadyagents with full subjectivity – despite the impediments frequently placed upon theiragency by those who assume a privileged epistemic ‘centre’ and by the institutionsand actors enacting its uneven mediation of effects. Diversifying agency drives atthe importance of undoing the tendency to assume such a dominant epistemic centre(‘the room’, ‘the table’) to which ‘others’ are invited. Diversifying agency is, then,intimately related to Code’s important argument concerning the diversification ofepistemic location and the need to embrace a diverse ecology of knowledges.164

If diversifying agency should be understood as an emphasis on the need for epis-temic openness, this is arguably most powerful when placed in direct contrast to theepistemology of mastery and its disembodied ‘knower’ in the form of the Cartesian/Kantian subject of modern science, law and legal subjectivity. Placed next to a criticalanalysis of the politics of disembodiment and its implications for the climate, the callto diversify agency can be understood to invoke a particular kind of political sensitiv-ity to the epistemological implications of embodiment. The implications of this areparticularly rich: our embodiment means that we are always necessarily corporeally

162. A Grear, ‘Law’s Entities: Complexity, Plasticity and Justice’ (2013) 4(1) Jurisprudence76–101; J Berg, ‘Of Elephants and Embryos: A Proposed Framework for Legal Personhood’(2007) 57 Hastings Law Journal 369–406.163. <http://www.mrfcj.org> accessed 5 February 2014.164. Code (n 53).



‘situated’ and that our perception is shaped (or deformed) by embodied limitation. Incomplete contrast to the impossibly disembodied autonomous subject whose episte-mology is a mono-cultural ‘view from nowhere’, the embodied subject is always posi-tioned and has an inherently incomplete view. This sense of epistemic limitation inturn readily implies the need for epistemic humility – for an open acknowledgmentin both theoretical and practical terms of the vulnerability of perspective arisingfrom the limitations (both real and symbolic) of the body itself as a field of perception.However, our shared corporeal nature also richly suggests the need for forms of radi-cal epistemological openness to a rich tumult of nuances and insights presented by asocial world of embodied beings and systems. In short, our epistemic practices(including our law and policy fora) need to become radically open to multiple voices,multiple positions and multiple forms of agency, including – in some situations andcircumstances – non-human forms of agency such as the non-linguistic communica-tions emerging from ecosystems, animal movements and living histories.165

All this suggests not only the importance of rejecting the actor/acted upon binaryso fundamental to policy languages but the need to find new ways of seeing, thinkingand speaking about the agency of diverse communities of concern. It also implies theneed for climate justice advocacy to embrace the energies emerging from socialmovement activisms – the need to embrace, as it were, the dynamics of the ‘contem-porary’ notion of human rights as authored by communities of people in struggle, byresistive – even militant – forms of subjectivity raised against the violence of theuneven global order and its juridical formation. Indeed, the early climate justice pro-test movements can be read in precisely this way. By retaining a vivid connectionwith resistive energies and social movement activisms, climate justice will necessarilyembody a discourse rather more at home with critical and post-colonial sensibilitiesthan with the dominant assumptions currently shaping mainstream responses to cli-mate change – but only, perhaps, if such movements are thoroughly alert to theever-present danger of discursive and political appropriation by ‘the centre’.

3.4 The need to embrace complexity – and new modes of self-governance

It was pointed out at the beginning of this article that law’s rather rigid categories andtaxonomies are intrinsically ill suited to the complexity of climate-related questions.It is increasingly vital for law to embrace complexity-based thinking.166 Apart frommandating new theoretical accounts of law, in practical terms, this might mean chal-lenging law’s path dependencies by embracing notions of fluidity, epistemic uncer-tainty and humility and making these central to governance responses. This, yetagain, points back towards the importance of a renewal or transformation of partici-pative structures and a fundamental re-imagination of ‘participants’. This in turn indi-cates the need to design imaginative multi-level governance fora reconceivingadvocacy and engagement as practices explicitly open to a diverse ecology of knowl-edges.167 Another important policy implication of such an approach is the idea of

165. See M Pieraccini, ‘Property Pluralism and the Partial Reflexivity of Conservation Law:The Case of Upland Commons in England and Wales’ (2012) 3(2) Journal of Human Rightsand the Environment, 273–87; A Philippopoulos-Mihalopoulos, ‘The Triveneto Transhumance:Law, Land, Movement’ (2013) 3 Politica and Societa 447–68.166. See, for an extended discussion of complexity-based, self-governance responses, B Westonand D Bollier, Green Governance: Ecological Survival, Human Rights and the Law of theCommons (Cambridge University Press, Cambridge 2013).



giving positive new imaginative spaces to ‘intermediate communities’ or ‘specificnetworks of solidarity’ lying ‘between’ state and market.168 Such situated networkswill be inherently responsive to lived realities – intrinsically more able, perhaps, toproduce new, practical, organic and adaptive, self-governance responses emergingin non-state and commons-based initiatives – in turn, reconstituting agency in farmore complex forms.169 This moves far beyond a traditional ‘rule of law’ approach,suggesting the centrality, indeed, of what Weston and Bollier call ‘vernacular law’ –the blossoming of multiple sites and practices of new forms of social movement,grassroots normativity.170

Again, such movement will necessarily hold climate justice in an organic, criticalspace – placing it at an inherent distance from neoliberal legal priorities and structuresand positioning it as a living, adaptive mode of critique. Such social energies are animportant mode of sustenance for climate justice, and it seems vital for the discourseto draw energies from deep engagement with multiple social movement activisms andvernacular spaces if it is to possess the independent vigour to exceed and to compli-cate the inevitable institutional and juridical dulling of its more radical implicationsand possibilities.171 A living relationship with the ground-level impulses that givebirth to emancipatory responses – themselves energized by patterns of injustice –

remains critical for the future resistance of climate justice to co-option in the serviceof an uneven status quo.

3.5 The need for ceaseless, reflexive epistemic vigilance to form a corepriority of climate justice practices

Finally, when all is said and done, it seems important to concede the inevitability thatclimate justice as a concept remains open to a pernicious range of deployments,including the adaptive semantic strategies of corporate capital in its responsibility-evading mutations. The same – of course – can be said of the notion of climate injus-tice. However, particularly when understood as a co-symptomatic form of injustice,climate injustice explicitly points to the patterns characterizing the history and con-temporary realities of a highly uneven global order and to the relationships betweenprivilege and oppression marking them. Thus, while multinational corporations might,in the future, claim to be entitled to climate justice – or to be the victims of climateinjustice – their claims, when placed in a co-symptomatic nexus indicated by the pat-terns of climate injustice, are contextualized by a critical account pointing in an alter-native direction, one fully sensitive to the temporal and spatial dimensions of climateinjustice in a long history of oppression and of highly selective forms of exclusion andprivilege. An account of climate injustice informed by critical legal theory suggeststhe need for constant responsiveness to the pathology of neoliberal capitalism as a

167. Code (n 53).168. S Coyle, ‘Vulnerability and the Liberal Order’ in MA Fineman and A Grear, Vulnerabil-ity: Reflections on a New Ethical Foundation for Law and Politics (Ashgate, Aldershot 2013),61–76.169. Weston and Bollier (n 166).170. Ibid.171. For an eloquent account of the operation of social movement energies and institutionalcapture, see N Stammers, Human Rights and Social Movements (Pluto Press, London 2009)and N Stammers, ‘Social Movements and the Social Construction of Human Rights’ (1999)21(4) Human Rights Quarterly, 980–1008.



process. This requires, in response, an on-going, adaptive, critical awareness of shift-ing relativities and relationalities of position, power, responsibility and vulnerability.It is only through maintaining this kind of reflexive critical awareness that climate jus-tice can build adaptive forms of resistance to its reduction to semantic weaponry in thepursuit of ‘business as usual’ and remain fully responsive to the constituencies at thecentre of its compassionate political impulse.

4 CONCLUSION

Bringing the concept of ‘climate justice’ into direct interface with an energetic traditionof world-facing critical legal scholarship produces powerful signals for climate justiceadvocacy, policy and action. Such a critical analysis reveals the patterned nature of cli-mate injustice and exposes the climate crisis as an urgent crisis of human hierarchy.Directly related to this, such analysis reveals the ideological role of legal subjectivityin the mediation of such hierarchy and in the persistently problematic juridical central-ity of the corporate form. Sustained critical reflection on climate injustice also rendersclimate justice more semantically alert, reflexive and adaptive. This holds out theprospect of critically informed modes of resistance to corporate capture – a resistancefundamental to the future prospects of ‘climate justice’ escaping the trajectories ofinstitutional and discursive co-option to challenge the juridical components of climatesuffering and to construct the law and policy foundations for a ‘justice’ worthy ofthe name.



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