It seems as if we are stuck in our own destruction. As in the film Don’t Look Up, the elites governing the planet continue to engage in a noisy blah-blah, failing to take necessary actions to fight climate change. Embracing passivism, some media spin the message that we are on the way of non-return. For example, on November 5th, 2022, the cover page of The Economist was titled Say Goodbye to 1.5 ◦C. Writer and environmental activist Rob Hopkins commented on Twitter: ‘The UN said a couple of weeks ago staying below 1.5 degrees is now impossible unless we see "a radical transformation of society". So all the papers ran with headlines like this. None ran with "how about we have a radical transformation of society?"’ Why is it easier to accept planetary catastrophe than engage in a radical transformation of society?
Fossil Bloc Power and Legal Locks-in
Among the obstacles for radical transformation is the power of the so/called ‘fossil bloc.’ Clearly the fossil fuel (FF) industry has great material power. Scholars have drawn the attention to the fact that the FF power extends far beyond the material, taking also an institutional and discursive form. One mechanism through which material power is entrenched, augmented and at times transformed in institutional power is through law. I have talked about international investment law in this blog before. This system protects foreign investors by giving them extraordinary rights to sue governments before opaque arbitral tribunals, with unresolved conflict of interests. The so-called investor-state dispute settlement (ISDS) is a dystopian legal universe in which investors (often multinationals) have only rights and no enforceable obligations. Next to being an assault on environmental justice and fueling racial capitalism , the ISDS is a threat to the energy transition as it de facto locks us in in the FF economy. If countries want to combat climate change and live up to the Paris goals, they may have to cancel oil and gas projects that are currently under development. According to a study recently published in Science, the Energy Charter Treaty (ECT) and other international investment agreements ‘could generate upward of $340 billion in legal claims from oil and gas investors.’ ISDS, established by international investment agreements, constitutes a legal barrier to democratically driven change. It is a legal lock-in of an extractivist economic system against ecological transformative change.
Focusing only on the energy sector, the ECT is possibly the most problematic of this type of agreements for the energy transition. For adopting environmental regulations prohibiting the cultivation of hydrocarbons in the sea off its coast, Italy was recently ordered to pay 240 million euros to the oil company Rockhopper. In response to the government climate regulation adopted after the Urgenda decision, energy companies RWE and Uniper initiated international arbitration against the Dutch government, demanding a total of more than 2 billion euros. While the latter cases have been suspended because of geopolitical reasons, they bear witness to the lock-in potential of this legal system.
People have the power too
The chief reasons why I am mentioning these cases, however, is not to draw attention to the power of the FF industry but to reflect on the counter-power of the people. In both sets of cases, the civil society has been powerfully resisting the FF economy. In the case of Rockhopper v Italy, oil corporations tried to initiate an offshore cultivation of hydrocarbons in the beautiful Italian seashore. Massive popular mobilization, led by activists and scientists alike, lasted for years and resulted in a denial of the hydrocarbons cultivation permit. In a different context, the Dutch civil society initiated a legal case against the Dutch government for its lack of action vis-à-vis climate change. With the Urgenda ruling the Dutch government was forced to take action. These cases show that, at least within domestic legal orders, ecological change is possible. But the story does not end here.
In its 2018 special report on global warming reaching 1.5 ◦C, the International Panel on Climate Change (IPCC) concludes that ‘civil society is to a great extent the only reliable motor for driving institutions to change at the pace required’ (p 352). It is high time to recognize, particularly as academics, the importance of civil society for transformative change. If we want such change (rather than mere transformismo), we have to start cherish forms of radical democracy, where people mobilize, including through civil disobedience.
Despite little coverage in the news, the ECT and other investment agreements have been fiercely opposed by civil society organizations. Arguably in response to widespread civic mobilization, in November 2022, the European Parliament has adopted a resolution calling ‘on the Commission and the Member States to start preparing a coordinated exit from the ECT.’ Today, several European governments, including Poland, Spain, the Netherlands, France, Slovenia, Germany and Luxembourg, have stated their intention to withdraw from the ECT. With the resolution of the European Parliament, the possibility that the ECT will implode starts to become more concrete. While reading the news on the Parliament resolution calling for a coordinated withdrawal from the ECT, I had to think of the people’s protests. Then the radio started playing the timeless song of Patti Smith …
‘I awakened to the cry,
That the people have the power,
To redeem the work of fools.’
There are still many legal obstacles preventing us to get rid of the ISDS system protecting FF, most importantly the so-called sunset clauses, which are provisions establishing that disputes can be brought against states 20 years after the treaty is terminated. Yet, with a coordinated exit of EU member states from the ECT, these clauses could also be renegotiated, so as to end the scandalous protection of fossil fuels. But there is a serious amount of legal work that needs to be done to break free from the legal lock-ins of the FF economy. For a radical transformation to happen, we need to de-colonize our political and legal imagination from the passivist rhetoric fueled by politicians, media, the FF industry, and regrettably some lawyers. For a radical transformation, we need to act now. This is why as a legal academic, I started to ‘f**k nuance’ and say out loud that ISDS is a violation of the rule of law. It is why I join the authors of the Science article to call for an abolitionist approach towards ISDS. It is why I join the struggles of the civil society and call upon governments to take an uncompromising stance towards international agreements that lock-in the FF economy.
This is also why on Monday 28, 2022 I accepted the invitation of OccupyEur to give a speech at the student-led occupation of the building the Erasmus School of Law is located in. The occupation was terminated, when the riot police coerced the students and staff (like myself) outside the building. It was sad to see this carbon boot print staining my law faculty. But, that was not the end of the story. Only a couple of days later, more than 600 members of the academic community decried these acts against the peaceful protests. The Executive Board has already offered excuses and promised a frank dialogue, which will hopefully lead towards a more resilient university, capable to resist the influence of Big Oil. And again, the words of Greta Thunberg come to mind: Hope is taking action, Hope always comes from the people.
 It is interesting to note that RWE and Urgenda also initiated the same case before a Dutch domestic court. The Dutch Court has recently issued a verdict dismissing the damages claimed by the companies. This case bears witness to the fact that domestic courts may overall be better equipped to let environmental regulation stand its course.