The Legal Foundations of New Economic Models for Planetary Well-Being

Having followed her work for many years, it is an honor to now offer a brief response to Prof. dr. Elisa Morgera’s essay and Montesquieu lecture address. I am similarly enthusiastic to see the concept of ‘sacrifice zones’ return in the work of the United Nations Special Rapporteurs, building on the earlier work of the UN Special Rapporteur on Human Rights and the Environment.¹ This also builds on increasing attention by legal scholars to the legal implications – in particular, human rights violations – faced by residents of heavily polluted or contaminated areas.²

Here in the Netherlands, the term has taken on particular importance in the past months in light of litigation about the climate mitigation and adaptation obligations of the Dutch State with respect to Bonaire, one of its extraordinary overseas municipalities in the Caribbean.³ As a low-laying, tropical island, Bonaire’s residents find themselves particularly vulnerable to the changing climate and the increased tropical storms, hurricanes and extreme heat that it entails. This vulnerability overlaps with the historical position of Bonaire as a major site of the nation’s use of enslaved persons for labor. Coincidentally, the historical monument of former slaves’ houses on Bonaire are mentioned as sites particularly exposed to the risk of flooding during intense storms and rising sea levels.⁴ In its ruling, the Hague District Court found the Dutch State to have violated its duty of care to Bonaire’s residents, and to have unlawfully discriminated against them, by failing to develop a climate adaptation plan for Bonaire, while the European territories of the Netherlands have had such a plan for a decade. One might say that the Netherlands had been treating the island as a ‘sacrifice zone,’ disproportionately exposing it to the vulnerabilities of climate change.

In Morgera’s essay she posits that States out to consider the fossil fuel phaseout process as part of a broader obligation to develop new economic models that are necessary for providing goods and services in a manner that ensures the well-being of humans and the environment. I agree with her plea for such new economic models but would modify the statement to place greater emphasis on the foundational role of law within them. In short, the problem for legal scholars is two-fold: first, we are faced with the need to better understand how the shortcomings and injustices of our current economic models are created and sustained by legal features; and second, we need to re-develop these legal features – rules, concepts, doctrine, procedures and institutions – to create legal foundations capable of structuring and sustaining just and sustainable economies premised on care rather than exclusion.

My colleagues at Tilburg Law School and I have previously remarked at how the Anthropocene calls into question the degree of transformations⁵ required to achieve offramps from the exploitative and unjust economic practices that characterize our contemporary societies.⁶ We drew inspiration from recent scholarship and legal developments that both shine light on the fundamentally problematic character of law, and openings for transforming these characteristics along a vein that would allow for the constitution of new socio-economic conditions. For example. Peter Szigeti’s work on property law and the right to abandon one’s property helps us understand how pivotal abandonment is to sustaining our ongoing plastic waste crisis and the pollution it creates.⁷ Furthermore, he has staked out the beginnings of a new, transformative conceptualization of limited alienability in property, a framework in which economic operators would retain obligations to care for the materials they disseminate in the world, triggering new economic activities and industries geared towards waste reduction and recycling rather than business models premised on the production of perpetual streams of ungovernable waste.

Similarly, recent litigation about the Scope 3 emissions of oil and gas extraction projects – most notably in Norway – raises attention to the fundamental blindness that our environmental and climate law frameworks have long held toward the climate impacts of fossil fuel production projects, despite the fact that such environmental assessments have long been staple features of environmental law in European legal systems.⁸ Climate action groups, through public interest litigation, have been slowly working to transform the basic understanding of what constitutes an ‘impact’ to the environment in the context of climate change, fundamentally shifting the administrative calculus behind fossil fuel extraction projects in the meantime.⁹

By way of conclusion, I agree that it is appropriate for states to view the fossil fuel phaseout processes as part of a broader obligation to transform the economic models which define our societies, as Prof. Morgera argues. My plea – for legal scholars in particular – is to prioritize analysis of how the law has been contributing to these thoroughly insufficient economic models that sustain our planetary crises, and work towards developing the new legal foundations that are needed for building new, sustainable economic models aimed at achieving equitable and sustainable well-being.