Lillian Robb, A Square Peg in a Round Hole: Resolving the Fragmentation of Transnational Litigation of Corporations for Environmental Harm (2022)
“Transnational strategic litigation is increasingly utilised as a vehicle by which to bring cases concerning environmental harm. Though primarily developed as a mechanism to address the human impacts of transnational corporate activity, a lack of environmental legislation delivering the same opportunities for environmental harm has required litigators to utilise extant legal frameworks in new ways, by squeezing cases of environmental harm to fit into anthropocentric models.
This contortion, driven by the need to fit cases that involve ecological harm into anthropocentric causes of action, has both theoretical and practical effects. Within a single case, a complete and holistic rendering of harm suffered is stymied when facts are characterised differently across jurisdictions and divided into different cases addressing, separately, environmental harms, climate change, or human impacts. Cases of environmental harm are dependent upon their human impacts, and the mechanisms for addressing those human impacts are diverse and sometimes divergent. These challenges, both symptomatic of, and actively contributing to, the fragmentation of international and transnational law, result in undesirable side effects that require consideration in moving forward with transnational accountability of corporations for environmental harm.
This work argues a need for new causes of action capable of unifying the fragmenting forces currently at play and explores the viability of the current proposals relating to the creation of a crime of ecocide in achieving that aim, exploring it in its many potential forms.”