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By Jeff Handmaker
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Both scholars and practitioners engaged in either researching or advancing legal mobilization recognize that law can be used to guide legal interventions seeking to trigger transformative justice. A persistent question faced by legal mobilization practitioners and researchers alike is: who are we mobilizing for, and with whom? As a member of the Legal Mobilization Platform (LMP), I sought to answer this question during the platform’s launch on 12 January 2023 in The Hague.
Who takes the lead in legal mobilization claims?
It should be a standard response that any legal mobilization claim should be led by individuals and organizations who experience violations. However, this is not always the case. The structure of the legal profession often obscures the agency of those whose rights have been violated. Contradicting the approach of Systemic Justice, those who are centred in strategic litigation are often the NGOs and law firms – however well-intended – that are officially presenting a particular claim, rather than the communities and individuals affected by violations.
As a researcher wanting to understand these dynamics better, but also as someone with a long history of advocacy in my earlier career as a human rights lawyer, it has always been important for me to understand the objective of a legal mobilization claim and to critically reflect on my role in it.
The Legal Mobilization Platform (LMP) is a large and broad platform of researchers and practitioners, where legal mobilization researchers and practitioners can interact with each other in a dynamic and reflective shared space. From the overwhelming responses we have received thus far, there appears to be a very strong interest in better understanding and reflecting upon which forms of legal mobilization work and which don’t to trigger transformative change. To give an example, LMP-member Systemic Justice orient their work around “community-driven litigation”. Their goal is
…to radically transform how the law works for communities fighting for racial, social, and economic justice. Centring affected communities in joint litigation, Systemic Justice will help broaden access to judicial remedies for those fighting for justice and equality. This will help dismantle the power structures that underpin and fuel racial, social, and economic injustice.
People can certainly be both a researcher and advocate. However, these roles are different: what researchers aim for are solid arguments based on a convincing methodology; for practitioners, the aim is for transformative change. Without being clear what one’s role is, one can end up being of little use to either scholars or to activists. Nevertheless, for both researchers and practitioners, being a critically reflexive researcher or a conscientious advocate may involve standing up for cause, just as much as it may be necessary to step back, allowing others to take up the research or advocacy space and above all supporting others, or what Aminata Cairo refers to as “holding space”.
Recognizing one’s privilege
The questioning of who represents what goes even further than this. Before deciding whether one has the legitimacy to either research or represent a cause, it is critical for one to recognize one’s privilege. Critical scholars problematize this from the fields of critical race studies, critical feminist studies and critical legal studies, such as TWAIL. From a methodological standpoint, it is critical to recognize one’s positionality in relation to both the issues and people that are the focus of research, as well as the importance of praxis.
However, even more crucially, social justice activists frequently insist on questioning who, and in what manner, individuals can credibly speak out on issues such as the Dutch slavery and colonial heritage, which is currently a topic of much debate in the Netherlands and a focus of the LMP.
The challenges of patriarchy, racism, elitism, and anthropocentrism
Apart from crucial matters of ownership and positionality, there are myriad institutional structures and systems that can pose challenges for legal mobilization practitioners to navigate. To begin with, the patriarchal character of law, legal process and systems, including universities and the legal profession, structurally privileges men. But this is not the only problem. Patriarchy also corrodes the way institutions operate, with a tendency towards non-collaboration, individualism, and a high level of competitiveness. Similarly, the racialized character of law, legal processes, and systems structurally privilege white people. We see this problem in efforts to accomplish gender diversity and inclusion, within the public sector, courts, and universities where racist stereotypes persist, and even within NGOs, as Doctors Without Borders has acknowledged.
Alongside patriarchy and racism is the elitist character of the law and legal process that systemically protects the interests of a handful of affluent people, the so-called 1%, allowing some individuals to acquire massive opulence that can eclipse the GDP of entire nations, while allowing ample opportunities to avoid the payment of tax, hindering the equitable distribution of wealth.
And finally, the law and legal process tend to be highly anthropocentric, which means that they structurally privilege humans and disregard non-human interests. Here we are talking about the rights of nature, which researchers such as Dr. Daphina Misiedjan focuses much of her research on.
All of this involves (or at least it should) a great deal of legal learning, which Karim Knio and Bob Jessop recognize are part and parcel of a pedagogical approach to understanding how crises, whether they be of a financial, social, or political nature, are construed and managed.
More than litigation
Finally, legal mobilization is much more than litigation alone. As Eva Rieter and I have argued, it is about many different uses of law, incorporating other confrontational forms, including, but not limited to, litigation, e.g. protests, corporate shaming, civic boycotts. But legal mobilization can also adopt cooperative forms, such as participation in policy-making processes, training courses on systemic racism awareness, and partnerships with municipal and national government actors and law enforcement officials to develop, monitor, and implement policies for tackling systemic racism.
In all respects, solidarity is key. Solidarity involves first and foremost, listening to those affected by racial, climate, and socio-economic injustice, which is not always easy for researchers and practitioners alike as systemic justice involves one fundamentally questioning liberal values that are dominant both in systems of law and governance, not to mention economic relations.
The future of legal mobilization
So how should one take these reflections forward in practice? A key strategy for tackling all of these dilemmas in legal mobilization practice has been demonstrated by Amsterdam-based member of the Platform Public Interest Litigation Project or PILP, which applies a broad understanding of strategic litigation and asks, “Where does it hurt?”.
Another example of going beyond litigation is De Zwart Manifest (“Black Manifesto”), which recognises that, according to the Dutch Constitution, “everyone in the NL is treated equally in equal circumstances”. However, “the reality is different. In the NL there is a racialized order”. In other words, the claim of the manifesto is not to champion equality, but rather to redress systemic inequalities, or what Gloria Wekker, a member of the Legal Mobilizational Platform, refers to as “radical equality”.
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About the author:
Jeff Handmaker is Associate Professor of Legal Sociology at the International Institute of Social Studies and, together with Margarethe Wewerinke-Singh at the University of Amsterdam Law School, a member of the Steering Group of the Legal Mobilization Platform
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By Corinne Lamain
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The climate crisis is becoming an international focal point, and budgets for climate change mitigation and adaptation are getting larger. At the same time, debates on ‘climate security’ involving some of the most powerful actors globally can be discerned. We need to ask ourselves, our governments, and corporations some difficult and counterintuitive questions: does much-needed action on climate change have harmful environmental and social effects, especially for marginalised groups living in and of water, land and forests?
Questions of environmental and social justice around climate action are not new: we know that climate mitigation and adaptation measures are not benefiting everyone equally[1]. Essentially, this is caused by climate interventions being built on growth imperatives, assigning (monetary) value to nature, and thereby including it in the neoliberal economic system. This approach overlooks the complex relations that humans have with nature, including spiritual and social bonds, and how nature is linked to livelihoods.
Matters get even more complicated when we add ‘climate security’ to the equation. In recent decades this frame has gained ground among some of the most powerful persons and institutions globally, for example the US Defence Force and Shell. The idea they promote is pretty straightforward: climate change causes erratic weather patterns, making areas less inhabitable due to scarcity of resources that in turn leads to conflict and migration. This would lead to instability locally, at the state level or even internationally, and as such poses security threats – to humans, but also to nation-states and even the international order.
But this premise of climate security, which has recently been placed on the agenda of the UN Security Council, is highly contested. From a political ecology perspective, it is regarded as Malthusian in the sense that the political choices related to natural resources are ignored. By asking key questions such as who owns what, who does what, and who gets what, the power dynamics around natural resources are thrown into sharp relief. Researchers and activists argue that there is need to be more concerned with how ‘policies to deal with the effects of climate change’ lead to conflict, rather than the effects of climate change itself.
And this climate security framing could mean that security actors – the military or security corporations – also get involved in formulating those policies. That for example may just lead to the militarisation of hydropower dams and forest management. This has also been observed within nature conservation around poaching, now referred to as ‘green wars’. Several authors have warned these matters need much more attention.
The various understandings of conflict
I became engaged in these topics through my professional position at the Dutch Research Council (NWO). I am working on research programmes funded by some of the larger development donors in northwestern Europe, such as one that was indeed concerned with the impact of climate policies on conflict. This programme sought to enhance an understanding of how climate policies may incite conflicts, such that the knowledge could add to more ‘conflict-sensitive climate action’. Seven research projects were funded that focused on conflicts around water, land and forests that were part of climate policies.
The launch of the programme had brought me to a seminar at the Circle National des Armées in Paris, where military actors that focused on security formed the majority. And I was asked to engage with the Planetary Security Initiative, launched by the Dutch Ministry of Foreign Affairs, also populated with military and governmental actors and security think tanks who in turn engage with corporations that are seeking stable contexts. These actors tend to see conflicts as (sudden) eruptions of violence that lead to death and injury, and possibly even war.
Throughout the process of implementing the programme, it occurred to me that those actors that I was engaging with had a different understanding of ‘conflict’. The donor representatives were impatient that the research did not seem to contain their idea of what a ‘conflict analysis’ should be and that typically results in a conflict typology to help categorize different conflicts.
The researchers in the programme, however, were speaking of conflicts as elements inherent to society, shaped by dynamics of power – as politics. Conflicts thus are not considered as ‘events’, but rather as a ‘process’ through which conflicting interests occur. According to such an understanding, conflicts are not the domain of the military or security actors, but are rather ‘a clash of interests, values and norms among individuals or groups that leads to antagonism and a struggle for power’.
Militarisation of climate action?
It is evident that these different readings of conflict may have implications for how, and by whom, climate responses are formulated.
When considering climate as a security threat, military and security actors could well become part of the formulation of responses to climate change, which would have major implications on the power dynamics around the natural resources involved.
It could, for example, lead to militarisation of hydropower dams, wind turbine parks or forest protection.
And that gives us reason to be worried. Experience with militarisation of anti-poaching efforts as part of nature conservation shows that this may lead to the normalisation of violence and has devastating consequences for people living with wildlife. As such, it could become possible for vested interests to dominate, while the interests of marginalised groups living in and of water, land and forests could be sidelined.
This blog thus calls on researchers and activists to increase understanding of these matters in the hope and anticipation that collectively we may gain greater understanding of these matters and as such contribute to more environmentally and socially just climate action. Because acting on the climate we must, but not at the cost of marginalised natures and humans.
Footnotes
[1] Already in 2012 the term ‘green grabbing’ was coined: appropriation in the name of the environment, including effects of climate interventions. Numerous examples are available, for example on the shift to renewable energies. Windmills, solar panel fields and hydropower dams that were erected have led to land and ocean grabs, with resource users being expelled. In fact, for those energy sources it is not always clear that they are ‘green’ to begin with. Their negative impact on the environment and ecosystems are widely recorded for instance in the Environmental Justice Atlas. In addition, conservation and regeneration of forests is a common mitigation and adaptation strategy. And it does feel good and tangible to plant or preserve a tree to compensate our consumption-guilt, no? That is essentially the starting point of the UNFCCC’s REDD+ programme. But vast amounts of research document the natural as well as social damage caused by REDD+. It has, for example, led to exclusion of forest dwellers in decisions on how to manage the forest, that are the provision of their livelihoods. They have also often not shared in the benefits that REDD+ projects should bring them. And in some instances areas have actually been deforested, precisely because climate funding has assigned monetary value to the trees and land.
About the author:
Corinne Lamain is a part-time PhD Candidate at ISS, where she studies the interrelations between climate finance mechanisms, climate securities and socio-ecological conflicts in the Eastern Himalayas.