Ecofeminism and Private International Law: The Notion of “Event” under the Rome II Regulation
The author of this post is Sara De Vido, Associate Professor of International Law at the Ca’ Foscari University of Venice.
This post, drawn from a broader article (S. De Vido, ‘The Privatisation of Climate Change Litigation: Current Developments in Conflict of Laws‘ Jus Cogens 6, 65–88 (2024)), explores the promise of ecofeminism as a method in private international law, with specific regard to the analysis of the concept of “event” under Article 7 of Regulation (EC) No. 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) in climate change cases.
The starting point of the reflection is the Milieudefensie et al v Royal Dutch Shell plc., decided in 2021 by the Hague District Court, and still pending (see the analysis in this Blog). In 2019, an environmental group called Milieudefensie (Friends of the Earth), along with other NGOs and more than 17,000 Dutch citizens, complained in front of the Hague District Court that Shell violated its duty of care under Dutch law and human rights obligations by failing to reduce greenhouse gas emissions.
The Court, having asserted its jurisdiction, applied the Dutch civil code to the merits, which was identified through the connecting factor enshrined in Article 7 of the Rome II Regulation.
As it is known, according to this provision, the law applicable to a non-contractual obligation arising out of environmental damage or damage sustained by persons or property as a result of such damage shall be the law determined pursuant to another provision of the Regulation, Article 4(1), which is the law of the country in which the damage occurred, unless the person seeking compensation for damage chooses to base his or her claim on the law of the country in which the event giving rise to the damage occurred.
To determine what is “an event giving rise to the damage” in the sense of Article 7, the Dutch Court reflected on how every emission of CO2 and other greenhouse gases, whether or not produced in the Netherlands and whether or not coming from Shell’s plants, contribute to the climate change and to the damage caused to Dutch residents in the Netherlands. The Court broadly interpreted Article 7 by suggesting that the provision opens to situations in which multiple events giving rise to the damage in multiple countries can be identified (para. 4.3.6). According to the Court, the corporate decision that was taken in the Netherlands for Shell represented one of these multiple events and “an independent cause of damage, which may contribute to environmental damage and imminent environmental damage” for Dutch residents. In other words, since the relevant business decisions concerning the numerous Shell’s emitting plants were taken in the Netherlands, Dutch law was applicable.
It is not the purpose of this post to analyse the case in detail, but to critically assess the principle of ubiquity under Article 7 of the Rome II Regulation, and to look at the Dutch judgment from an ecofeminist private international law perspective, which we argue is capable of grasping the complexity of events, like climate change, that stretch across time and space.
Feminist Analysis and Private International Law
Feminist analysis in private international law is still underdeveloped. Feminist theories reveal the “imbalance of power and wealth and the variety of oppressive relationships for people, especially women, in the international realm” (Banu 2017, p. 4). As Muir Watt argued, private international law has “contributed very little to the global governance debate, remaining remarkably silent before the increasingly unequal distribution of wealth and authority in the world”. This happened despite an interest of private international law for the private dimension of human affairs: from contracts to marriages, from the private status of individuals to issues of nationality of married women.
It is the “lost” private side of international law an outstanding author like Karen Knop tried to recapture and reassess from a feminist perspective, through a different account of history. Using a feminist lens in the analysis does not necessarily mean to talk about women and/or family matters.
This is one of the stereotypes inherent in the general scholarship that diminishes the feminist method as referring to women only. Using a feminist method means to read international law by disrupting traditional categories of law, unravelling patterns of discrimination and power imbalances tolerated and reproduced by the States.
Other interesting approaches have developed criticism against the structural patterns of oppression in the legal system and unravelled critical aspects of the mainstream international law. However, the feminist, and the ecofeminist method more specifically, is here considered as a possible perspective which adds to the analysis of schemes of oppression and subordination the layer of intersectionality, and, for what concerns ecofeminism, the layer of nature.
It means indeed to emphasise intersectionality as a lens of analysis, by looking at how different grounds of discrimination determine the position of an individual in the society, and, looking beyond humanity, in the environment. It is not necessarily the best method to describe the phenomenon of privatisation of climate change litigation, but it is rather a way to change point of view and elaborate new legal solutions that combine an understanding of the patterns of discrimination within our human societies with the realisation of oppression between different species and even across generations.
What if in the web of relationship human beings are considered as part of a whole, where this whole is the environment, composed of different elements and stretching across generations? In the choice of the law applicable to the case, the concept of “event” under Article 7 of the Rome II Regulation might incorporate emerging values and concerns, and appreciate, on the one hand, the relation between different elements of the environment, including human beings; on the other hand, how and to what extent transnational corporations must be held liable for their contribution to climate change.
As put by a feminist scholar decades ago, working with the common law system, “mak[ing] corporate decisionmakers personally responsible for the consequences of their decisions, thus humanizing corporations and their activities”.
The Promise of Ecofeminism as a Method in Conflict of Laws
The promise of an ecofeminist analysis for conflict of laws starts from the understanding of the relationship (and this idea of relational feminism is taken from Banu 2017) existing between different elements of the environment, with (a part of) humanity dominating over nature, and how this unequal relation between non-human animals, natural objects and humans reflects structural discrimination rooted in human society.
In a moment of history in which climate change and other forms of slow violence (as conceptualised by Rob Nixon and legally explored by Eliana Cusato, Nicole Rogers and myself in this edited book) have been challenging the space and the temporality of law, an ecofeminist approach unhinges the neutrality of conflict of laws and unravels its potential by introducing in the legal argument ecological concerns. Ecofeminism is a philosophical framing that led to the elaboration of different approaches: from the essentialist to the cultural one, from the socialist to the one incorporating intersectionality.
For a lawyer, this thought is intriguing because it puts into question law itself in the reproduction of schema of oppression and domination, but also allows legal scholarship (willing to listen) discover how to approach things in a different way: having in mind the environment and the interconnections between its different elements at the core of the debate.
The premise on which the ecofeminist thought is construed is that patterns of oppression and domination are not only intra-species but also inter-species, in the relation between humans and the nature (Grear 2015, p. 241).
When it comes to conflict of laws, at first sight the idea of endorsing an ecofeminist method is out of question. How can private international law, characterised by rules of conflict, take into consideration nature and its relations with human beings? Nonetheless, if we take a closer look at Rome II Regulation and at the emblematic case Milieudefensie, we will see that this method has infiltrated the system already and offers an innovative response to current challenges.
In its nature, the elaboration of ecofeminism, starting from Banu’s thought, includes nature in the relation (non-human animals and natural objects) and disrupts inequality in the relation between human beings. According to this line of thought, that this article starts to elaborate as preliminary application of a recent research, ecofeminism is useful to examine Article 7 of Rome II Regulation as applied by the Dutch Court in the Milieudefensie case.
There are two reasons for that.
The first one is textual and pertains to the choice by the parties affected: the general rule of conflict established by the Regulation (Article 4 (1)), namely the lex loci damni, or the special rule of conflict identified in the law of the country in which the event giving rise to the damage occurred. In this way, the law allows the injured parties to restructure their “human” relationship with a corporation: a relationship that is (generally) characterised by inequality.
The second reason is an ecological interpretation. By interpreting the place of the event as the place of the decision-making, a court understands that the environmental damage caused by climate change has an ecological impact that transcends proximity and a clear relationship between the cause and the consequence. It emphasises how, to tackle the challenge of climate change, there is a need to balance the relationship between the different parties and to make corporations liable for their impact on the environment.
Private international law in this sense is key, because through mechanisms of jurisdiction and choice of law it can justify the attraction of a certain case in the orbit of this or that State’s law (the one having a more stringent duty of care, usually the place of the decision-making process). In this understanding, the ecofeminist method puts into question the oppression provoked by the activity of transnational corporations and tries to rebalance this inequality by leaving a choice to the injured parties and by determining the law of the place of the decision-making.
There are two main comments stemming from this argument that justifies from an ecofeminist perspective the understanding of the concept of “place of the event” as the place of the decision-making process.
First, it can be questioned that this interpretation of the rule of conflict is excessively vague and jeorpardises freedom to conduct a business. The answer in light of both relational and ecofeminist approach is that the choice of law is not necessarily a sterile and objective mechanism to solve issues of conflict of sovereignty or state interests. It is rather a way “restructure oppressive relationships” (Banu 2017). This might be seen as a disproportionate burden imposed on corporations. However, we are convinced that it is time to consider the importance of values – human rights, but also ecological concerns – and that courts should give strength to interpretation that are not only in favour of the applicants (the victims) but also of nature. This trend in the practice of courts could induce corporations to adopt code of conducts and industry climate policies that take into account the multiple interests at stake.
The second comment refers to the still insufficient extent of the debate. It is time to make corporations liable for their contributions to climate change, but it is also time to acknowledge that the effects of climate change are not equal, and disproportionately affect certain categories of people, such as women, children, elderly people, people living in certain areas and social contexts, migrants, etc. In the Milieudefensie case, the Dutch court referred to the impact on the Dutch population at that time of the complaint. However, an ecofeminist approach looks at the injured party as the part of the population that suffers the most, and in a disproportionate way using an intersectional lens, from the consequences of climate change. In the respect of procedural requirements, which are not challenged here, this approach would stress that the analysis of the “victim” would be linked to the disproportionate impact of climate change on specific groups of our society. To put in a very simplistic way, in the Milieudefensie case, it would not mean to consider the entire Dutch population, but the part of the population that suffers the most (because of intersectional grounds of discrimination) from climate change.
Conclusions
This article is a first attempt to apply an innovative and disruptive method such as ecofeminism, in its “dialogue” with relational feminisms, to private relations having a cross-border dimension in climate change litigation. “Private” climate change litigation has an enormous potential, but it cannot adequately address all the challenges deriving from phenomena of “slow violence” unless, as this article tried to demonstrate, a change of perspective in the legal reasoning is invoked, one that puts the environment, of which humans belong, at the core of the discussion.