The Agency of Transnational Strategic Litigators in Global Governance

Project Information

TransLitigate

Grant agreement ID: 101039648

DOI

10.3030/101039648

EC signature date 16 March 2022

Start date 1 September 2022

End date 31 August 2027

Funded under

• European Research Council (ERC)

Total cost

€ 1 470 849,00

EU contribution

€ 1 470 849,00

Coordinated by

TILBURG UNIVERSITY- UNIVERSITEIT VAN TILBURG
Netherlands

Periodic Reporting for period 1 - TransLitigate (The Agency of Transnational Strategic Litigators in Global Governance)

Reporting period: 2022-09-01 to 2025-02-28

Summary of the context and overall objectives of the project

Litigators feature in a crucial role as we confront the pressing global environmental governance challenges of the 21st Century. They possess an agency which is capable of driving the evolution and implementation of law across national boundaries and at the supranational level. This project proposes to develop a groundbreaking, explanatory model of transnational collaborations among strategic litigators which accounts for their modes of collaboration, how those collaborations affect their agency in controlling the issues in their respective fields, and how they negotiate complex ethical and professional challenges in their work. It proposes to develop this model through the combination of comparative doctrinal research and inductive qualitative socio-legal research across four case studies of strategic litigation: climate change, large-scale land transfers, pollution caused by extractives industries, and species conservation. It pursues the ground-breaking aim of explaining the multi-faceted and complex deliberations among transnational communities of litigators which give rise to and shape the landmark cases transforming environmental governance in diverse national contexts. With this contribution to the sociology of strategic litigators, the project will achieve a break-through in our understanding of how change can be initiated in legal systems to overcome perpetual obstacles and meet our global environmental challenges. It pursues a breakthrough in understanding how litigators drive states and their legal systems to act upon their ability to govern global environmental challenges, given the unlikeliness of it occurring through domestic and international lawmaking alone. In sum, the project aims to develop a groundbreaking model of an innovative type of agency and actor in global governance: the strategic litigator collaborating across borders.

Work performed from the beginning of the project to the end of the period covered by the report and main results achieved so far

The Translitigate team has been progressing with the doctrinal and theoretical frameworks of the project over the course of the first two years. This entailed developing frameworks for the future empirical study of litigation practices across the four fields of litigation we cover. We are working across literatures to develop frameworks that conceptualize the strategic and organizational decision-making processes of attorneys who build the cases we study, as well as conducting doctrinal analysis that orients us in the jurisdictions where we subsequently conduct empirical research. We successfully accomplished a first major milestone for the project in hosting our second year workshop aimed at gathering feedback on the theory-informed structure of the project. Upon learning that the 2024 International Legal Ethics Conference was to be held nearby in Amsterdam in July 2024, we decided to split this workshop into two halves. The first half was held in Tilburg on 25 January 2024 as a component of a larger conference (titled ‘Protest Under Pressure’) and focused on the integration of scholarship related to following topics into our project: climate and environmental justice, transnational social movements and SLAPPs. The second half was held in July 2024 in Amsterdam and focused specifically on the integration of research questions pertaining to legal professional ethics in our project.
Two particular achievements worth mentioning at this stage are the development of case databases for the case studies on land conflicts and biodiversity protection. The first is a synthesis of many existing regional and national case databases, with additional cases added by the researchers. The second is a completely novel case database of systemic biodiversity litigation cases. Both are incorporated with papers currently under peer review and will be publicized upon publication of the papers.

Progress beyond the state of the art and expected potential impact (including the socio-economic impact and the wider societal implications of the project so far)

The progress made on the biodiversity litigation case study has delivered the first clear results beyond the state of the art, as the first paper (currently under peer review) establishes a strong case to be made for a transition to strategic approaches to biodiversity litigation. The outcomes of this case study will help shape a next generation of inquires into the evolution of nature conservation and restoration law, by outlining both how the sub-field itself can be articulated to prevent harmful actions higher up a causal chain, as well as how the norms from this sub-field can be read across other areas of law which are facilitating activities harmful to biodiversity. The findings also provide a strong basis for empirical research on how legal mobilization strategies are shifting 'on the ground' in environmental interest groups and environmental movements which to secure greater impact in their litigation actions. A second result beyond the state of the art is the positioning of climate litigation within a framework of political ecology, as done in Juan Auz's 2024 article 'The Political Ecology of Climate Remedies in Latin America and the Caribbean: Comparing Compliance between National and Inter-American Litigation'. This political ecology framework will be returned to in future papers and helps inform our future empirical research by positing political struggles and conflicts as a central concern to our categorization and analysis of litigation, including as a challenge confronting attorneys in the development of their cases.

Glocal climate activist