Miriam, I’d like to kick us off by thinking about how to describe the current state of our ecosystems and the global economy.

Well, the first thing that comes to my mind is how the current economic system is composed of two distinct realities. When it comes to generating profits for one group of people, money and capital move freely, especially when this concerns the extraction of wealth from the Global South. Poorer communities face a completely different set of circumstances, characterized by immobility, where things like pollution, violence and injustice stubbornly haunt their everyday space. You don’t have to try hard to find examples of this. We are currently working with the indigenous population in West Papua, where the Indonesian government has made it far too dangerous even for visitors to attempt to document the impacts of the mining industry, which include extrajudicial killings, land-grabbing and chronic pollution. At the same time, we see the rapid export of these commodities into our markets, bringing eye-watering profits supercharged by our bond markets. So, there’s a kind of paradoxical relationship between these two realities that ultimately produces deep inequalities. And our systems, be they economic, political or legal, do nothing to stop this. In fact, they assist. This is what is contributing to the climate and ecological catastrophes that we find ourselves facing.

Yes, even in this greener model of our economic system that you sketched out, capital is still given a one-way street with few impediments. Businesses gain easy access to extract raw materials and bring them to market, while those seeking fairness, equity or some measure of accountability for wrongdoing face a gauntlet of red tape and legal hurdles. And coming back to your question about the role of law – it’s very much part of the problem, designed by the powerful to protect the powerful. Law structures both sides of this extractive economic system, but nonetheless, it still contains the potential to challenge the status quo.

I think it’s key that you just mentioned how human rights claims can also be harnessed by communities to claim their interests, as this goes against what some critics of human rights law argue. They tend to say that human rights law is overly focused on Western conceptions of individual rights, and that this “individualization” reduces complex social issues like poverty and inequality to isolated incidents of individual rights violations. It seems like you’re suggesting instead that human rights can actually provide a different path toward collective action.

Well, scholars suggest that, when looking at a particular problem or complex of problems through the lens of human rights, the bigger picture tends to become more fragmented. Rights in a classic liberal sense force us to focus on a particular story, in which a certain individual has rights. Typically, there are these sets of protections that protect your right to life, your privacy, your family life, and they tend to be more on the civil and political end of the spectrum, as opposed to the social and economic. But the reality is that the system is attacking, inhibiting and undermining the social and economic fabric of our lives – such as the capacity to ensure adequate water supply, housing or food. Similarly, when individuals from the Global South take legal action in a European setting to address harms experienced by their communities, they can only claim individual civil and political rights in that specific jurisdiction. The ability of the court to look beyond its home jurisdiction is extremely limited, and it can only reach across borders in exceptional circumstances. If you’re interested in taking a global view, your hands are tied behind your back due to these inherent limitations and this individualizing aspect of human rights law. Critics say this has the effect of fragmenting agency and undermining communal action. I believe that in order to properly address this criticism, we need to find ways to continuously reflect on these pitfalls and consciously avoid them in our practice. This requires innovation and the exploration of other domains of law beyond those which explicitly protect human rights.

This is the bipolar legal framework as we know it. You have two entities, the harm-doer and the individual or the entity that is affected. This framework is often ill-equipped to bring justice to complex social and economic networks and realities. In a complex situation, each actor, each piece of the puzzle, is reduced to one of these two poles and isolated within a singular country or jurisdiction. This generates significant barriers to accountability. So, we have to be extremely conscious of this when thinking collectively and globally if we are to change, or at least challenge, the course of the current system, which, as you correctly point out, will continue to move in the same destructive direction if given the opportunity. So, the question becomes, how can law play a role there? And I think, Miriam, we would be in agreement that there is some potential for law, but it won’t solve everything. Would that be fair to say?

Are you asking if legal action inherently limits us to this individualized pathway?

There are scholars and activists, who advocate for a more holistic and community-centered approach to human rights practice, one that acknowledges the interconnections between individual and collective rights and that also takes into account the broader social, economic and political contexts in which rights violations occur. Such an approach seeks to combine the protection of individual rights with efforts to address structural inequalities and to promote social justice on a systemic level. If used strategically, human rights law serves as a powerful tool for advocacy and mobilization. It provides a language and framework that activists, organizations and affected communities can use to mobilize for social change. We should be imagining comprehensive approaches that combine legal strategies with other forms of resistance. Human rights law and practice is after all just one tool among many in the pursuit of structural justice. The reality is that legal action and advocacy often only succeed if combined with grassroots mobilization, policy reforms and transformative social movements.

Can you expand on this approach at ECCHR?

That is a great example of how certain legal procedures can actually be used to channel a collective approach for an impacted community. It’s almost as if you’re saying that because the law will only address damage to a community when it’s expressed by individuals, then these individuals become community representatives – or maybe even political representatives in a certain sense. At the Global Legal Action Network (GLAN), this is something we try to do as well. If the law makes us adhere to certain procedures, then we try to use those procedures to illuminate a problem differently or reframe the narrative. For example, we were part of a coalition that addressed Ireland’s aggressive approach toward profitshifting away from poorer countries, arguing that it violates the rights of children in places like Ghana by robbing them of much-needed tax windfalls, which has a direct impact on child mortality rates and well-being there. Thanks to this work, the UN Committee on the Rights of the Child agreed to examine the impacts of Ireland’s tax policies on the rights of children abroad, shining an important light on the human rights impacts that tax avoidance has on future generations. In other words, tax avoidance looks much less benign when it’s seen as a cause of child mortality, and this changes how we think about it. With the right strategy, sometimes it’s possible to use legal procedures to tell a completely different story that can have significant political ramifications.

I agree, and I think if you look at the history of how transnational legal interventions began to happen, it is clear they don’t really come from the side of theory. Progressive lawyers have to operate within parameters they’re given and find ways to tweak existing law to their advantage or even repurpose laws to different ends.

Operating beyond borders – well, it’s a short history, but the style and the approach has rapidly evolved. I think the initial movement into the transnational space really kicked off with the Alien Tort Statute litigation in the US in the late 1980s and early 1990s. You had this seminal case of a Paraguayan torture victim’s family who apparently recognized their son’s torturer on the streets of New York. They made approaches to civil society organizations – I think it was Amnesty International and the Center for Constitutional Rights (CCR) in New York – to see if something could be done in terms of holding this person to account within the US. I believe it started with a migration issue where the torturer had overstayed his visa, and this led to him to be detained after the family brought this to the attention of authorities. But very quickly, this little-known ancient law from 1789 was dusted off, and it stated that tortious acts in breach of the laws of nations – or in other words, international law – could be heard within the US federal court system. And this was for an act that had taken place outside of the US, which did not involve any US actor. This became the starting point for a legal conversation around transnational litigation.

These cases provided a springboard for transnational litigation, as well as an initial roadmap. At first, in these sorts of incidents, such as with the torturer from Paraguay and the Alien Tort Statute litigation, lawyers from the US would have a creative idea and say: “Hey, we’ve got a way forward, we’ve got a forum, we’ve got a way to try to hold this person to account on our own turf.” Such scenarios immediately presented the lawyers involved with a number of challenges that differ from those within domestic practice. The remoteness of lawyers from where the harms took place inevitably makes it difficult to properly understand the aspirations of affected communities. Miscommunications due to linguistic and cultural barriers may work to diminish the extent to which litigation can fully align with local long-term efforts to secure change. Combined with capacity constraints, there is a constant risk of well-meaning lawyers seeking a win in their jurisdiction, while not actually promoting the social movement beyond the horizon of the case, or ensuring that the court’s decision was actually ever implemented. In the end, within the transnational context, I think we need to see ourselves as part of an overall justice-seeking strategy that includes other elements such as advocacy, political pressure and communications, among others.

That’s a good example. In this case, we at GLAN are acting on behalf of six Portuguese young people who live in a climate change hotspot and who are already experiencing heat extremes that impact everything from their ability to sleep, to play and to work. For them, climate change is not abstract; it refers directly to their current exposure to record temperatures and heightened risk of wildfires. Their individual rights are certainly affected – from their right to life, to their right to privacy, a right which covers their physical and mental well-being. Within their lifetimes, Portugal could face heatwaves with temperatures exceeding 40°C that last for over a month.

So, we are alleging that individual rights are being violated, and in the process, we aim to highlight a structural failure. For this, an argument was developed to prevent states from escaping responsibility by only adopting emissions cuts, for example, which are collectively too weak to keep us from climate breakdown. Countries often try to avoid taking strong action to reduce emissions by making two main arguments. First, they claim that their efforts alone won’t solve the climate crisis, so they shouldn’t be required to do more than the basic minimum. Secondly, they argue that there is no agreed-upon method for attributing specific amounts of greenhouse gases to specific countries and, thus, for determining their fair share of mitigation efforts.

Our case argues that when multiple countries collectively create an injury, then they can share responsi-
bility for violating legal obligations. We argue that states are obligated by the European Convention on Human Rights to rapidly reduce both emissions released within their borders, as well as the contributions they make to emissions released outside their territory. As to emissions released within their borders, the case relies on the Climate Action Tracker fair share assessments to show that if every country in the world made the same effort as any individual state, global warming would reach a catastrophic 3°C or worse by 2100. Finally, in the absence of a precise method, the responsibility should fall on the respondent countries to agree on one.

Exactly. It is because of the failures of all these states to sufficiently reduce their greenhouse gas emissions that you have these detrimental effects on the well-being of people in Portugal. As judgments of the ECtHR are legally binding, a legal precedent would obligate states to develop an emissions-reduction system, and to coordinate and clarify which state should do what. In other words, we would secure the equivalent of a regional treaty compelling each country to speed up their mitigation efforts. As things currently stand, it’s just left up to each state to decide for itself. In this way, the case couples an individual lens of rights violations with demands for specific, but very structural, changes that are capable of addressing the climate crisis. Here, the tactic is to use individual rights violations as a means of generating a systemic approach, which we try to pursue by widening the number of states that we make responsible for the individual rights violation. We want to show that responsibility for the climate crisis is divided between many actors, and that they all need to act in coordination. Effectively, we are making a political claim about collective rights and collective responsibility and hope to create systemic change. I guess you could call this a kind of “tactical individualization.”

Yes, and the hope is that in this way, you knock down some of the barriers to accountability we spoke of before – cases isolated in separate jurisdictions whose connection is prevented by the purposefully fragmented nature of our legal systems.

I agree. As our world is significantly shaped by the pursuit of business interests, businesses, due to their economic power and global reach, can have both positive and negative impacts on human rights. The concept of business and human rights began to gain traction in the 1990s, marked by concerns over labor conditions, environmental impacts and the social responsibilities of corporations. Since then, a number of assumptions have been steadily dismantled. Business and human rights are no longer seen as separate spheres with minimal overlap, and in fact, enterprises have an obligation to respect these standards. Now, the assumption that businesses are only responsible for their direct actions has been challenged by the recognition that they are embedded within complex global supply chains. Even if they don’t directly control every step of the process, businesses are still potentially implicated in harms that occur within these supply chains – something which increasingly can be leveraged to create change across different geographies.

Similarly, in the UK, you have jurisprudence on parent/subsidiary liability, which entails that businesses are much more responsible for what’s happening in their subsidiaries, and they’re measured by their own external and internal environmental and social standards. I am also cautiously optimistic about the Corporate Sustainability Due Diligence Directive, which is currently being negotiated within the European Union. This would require large companies to conduct mandatory human rights and environmental due diligence throughout their operations and supply chains. This means that companies would have to identify, prevent and mitigate any potential negative impacts on human rights and the environment that their activities may cause. It is unclear to what extent this will apply to the financial sector, and the details are still being negotiated. Financial actors have a unique and powerful ability to persuade companies to implement standards that respect human rights, and their full inclusion is critical. In the end, the effectiveness of this law will require ongoing engagement on many levels, including beyond the courtroom, by unions, communities, politicians, government agencies and those fighting for the rights of people affected by corporate conduct in third countries.

That’s it, yes. This really contrasts to how law is generally portrayed on television and in the news, where news headlines are typically captured by this sort of “justice-has-been-served moment” on the courthouse steps. That’s what Helen Duffy calls the “champagne moment,” when the law has triumphed and victory has been secured.

Yes, these kinds of charismatic, ego-driven lawyers who doggedly pursue a case for a long time and then win despite the odds. You almost need an epiphany to realize that law will not be the silver bullet in these complex, multidimensional situations we’re talking about. Especially when you’re dealing with a supply chain, the interests and the actors are so diverse that no singular action will address or solve all the problems within this complexity of behaviors. But for a lawyer to admit that they’re not putting all their faith in the decision of a court, as you said, can be strange. Then, one might ask: why is the lawyer involved? I suppose that even while recognizing that the prospects for failure are high, there is still a power in mobilizing the lawyers, the claimants and other supporters towards that decision. It’s also the potential for success and the power that comes from tapping into the legitimacy of your claim that will continue to produce results long after the case has reached its conclusion.

Yes, the process has a social power. You are tapping into external standards and aligning your complaint with them. But maybe even more importantly, you’re putting things in terms that other actors from other jurisdictions can understand. It’s an attempt at storytelling that can be comprehensible to the international community. And this is where I think you can unlock power – when a community is then no longer isolated in its story. It can align itself with and seek support from other NGOs or other communities facing a similar situation. If their interests are affected by the same company, for example, they can work together and present this to the media, and suddenly, it’s no longer just a domestic issue on either side. This becomes way more interesting for journalists. In what would normally only be a story about domestic labor exploitation, here such everyday exploitation is shown to have another dimension when you see it through the lens of the globalized economic system. It brings oxygen to the story.

Most definitely. And this again demonstrates that it’s about the story you can create through litigation. When you start to expose the inconsistencies of companies that are presenting themselves as ethical actors, this of course can have legal consequences and reputational costs that affect their ability to conduct business or attract investment. Legal storytelling fishes out very particular types of information; it’s designed in a very specific manner to have multiple future consequences. I’m now thinking about a case where we used anti-money-laundering legislation to target the importation of cotton produced with forced labor. This area of law is typically applied to target the proceeds of financial and organized crime. There have been some attempts to expand this regime of law to wildlife and the illegal timber trade, but even within these areas, consistency in the approach has been slow to emerge in practice. We challenged the notion that cotton produced by Uyghur forced labor from China should flow freely into the UK, and during the proceedings, it was accepted that such cotton could be treated as “criminal property” under the Proceeds of Crime Act. This means that anyone who is knowingly involved in the transferring, concealing or trading of these goods would themselves be committing an offense. We are interested in broadening the scope of such anti-money-laundering laws so that they may also bite into the proceeds resulting from environmental harms. This brings a criminal narrative to bear on economic actors. If successful, it would bring the risk of being branded a criminal to the doorstep of many multinational actors and their staff who enable such activity.

We need to develop more systemic approaches. If we go back to the Alien Tort Statute litigation, there we had a bipolar or maybe even tri-polar situation. You have the harm-doer, the victim and you had a court. Now, we are contending with an array of intermediary actors and economic enablers who are part of the story: they sit between multinational corporations that take advantage of their power at the expense of ecologically rich environments and affected communities. Banks lend money to the companies which destroy communities and plunder their resources, bond and stock markets allow these companies to raise additional money, and commodities exchanges allow mined goods to be sold internationally. Auditors, accountants and lawyers facilitate and “sanitize” each interaction between these institutions and illicit commodities, which is how they end up within technology, cars and other consumer products. In other words, large-scale injustices are made possible by these economic enablers, which are constitutive elements of global economic infrastructure that provide access to legitimate international markets. For GLAN and many of our colleagues as well, there’s a growing interest in tackling these enablers. We need to address all these third parties who are complicit in many different ways and to varying degrees in the production of harm. So, I think multipolarity needs to become a feature of transnational litigation. We need to look at all of the complexities involved and tackle actors who we previously considered to be benign and transactional.

Systemic change requires systemic action, which means that multiple legal pressure points need to be identified and acted on in a coordinated, multipronged strategic manner. One way would be to concentrate our efforts on multiple supply chains linked to specific geographic areas, which we call “microcosms.” In essence, microcosms are situations that readily reveal global capitalism’s role in causing devastating harm to humans and the environment, often through supply chains and investment flows. Investigations of harms within these “microcosms” could reveal multiple international legal pressure points, or choke points as you call them, that can be used to target a vast array of economic enablers. In West Papua and Guinea, which I spoke of earlier, you have microcosms, where, between the harms associated with rapacious mining activities and the markets where these minerals appear, there is a complex chain of enabling actors that work to conceal or ignore said harms while maintaining the flow of profits. Our goal is to find vulnerabilities with several of these actors and launch coordinated litigation efforts in multiple jurisdictions at the same time.

Yes, and this requires even more sophistication in the choreography of our legal actions at an inter-jurisdictional level. If we pace things right, a legal action in Ireland could reinforce a legal action in Germany so that, hypothetically, investigations into harms in other countries occur in a manner that will support litigation in an entirely different country, as well as international advocacy efforts. If we couple this mode of storytelling with a new type of self-understanding on the part of lawyers that we discussed earlier, I think we’ve entered the realm of systemic action. And then the question becomes whether the change that this legal work produces is radical enough.