Rights in the era of ‘green’ market expansion: articulating radical demands

Abstract

The unfolding planetary crisis confronts us with unprecedented challenges. As climate change and biodiversity loss accelerate, environmental and social movements across the planet increasingly turn to human rights, to tackle the problems global policy largely fails to address. More and more, rights are not only invoked to press governments towards more ambitious climate action, but also against the injustices resulting from our responses to the planetary crisis. A central feature of global climate law and policy are market-based solutions. While proponents praise them as the most efficient way to reduce emissions, market mechanisms favour historical polluters and are geared towards upholding the capitalist political economy that has caused the crisis in the first place. While rights-based litigation seeks to confront the multiple injustices caused or exacerbated by ‘green’ markets, rights’ transformative force remains ambivalent. While human rights are often seen as a device of resistance against capitalism’s excesses, their orthodox understanding is firmly rooted in Western-liberal individualism, centred on the human, property owning subject. Consequently, critical scholars have called into question human rights’ emancipatory potential or even accused them of being complicit in neoliberal globalisation. Looking at recent case law on climate and just transition permits to retrieve a differential understanding of rights, that neither uncritically endorses, nor entirely dismisses them. Climate and just transition litigation suggest that human rights are best conceptualised as oscillating between two poles: As a-legal, radical demands, they confront and challenge the given order – as authoritatively mediated decisions in the field of law, they consolidate the given political-economic set up. Understanding rights this way helps to inform our thinking about how we best employ them strategically