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Claiming a Common World?

Gender in Environmental Law and Climate Litigation

 

Research Period II (2021-2024)

Our environment is in danger, and we need to fight the climate catastrophe. This demand is brought to courts in climate litigation. As a phenomenon climate litigation calls all three FOR coordinates into in question: Using knowledge from gender studies, we can identify Anthropos, the human polluter, and his environment (gender). Organizations that pursue claims to protect the environment, under the primacy of an abstract common good and technical solutions, in fact reconsider collectivities, with the Swiss women ‘climate-seniors’ (KlimaSeniorinnen) and Maria Khan / Pakistan formulating gender-specific demands (collectivity). However, those affected are granted legal subjectivity rather narrowly defined, which individuals surpass with their legal action, thus modify the law itself (law). Along the way, and also because of cooperating with environmental organizations, environmental law gets under human rights-based pressure to transform itself, similar to the changes effectuated by the asylum conflicts at the European borders we studies in Phase I. Compared to the right of asylum, climate litigation faces even stronger forces of transformation as well as perseverance. We are interested in how this juridical intensification of conflict opens up new perspectives on a commonly shared and gender just world.

We pursue this topic through discourse analysis on three working levels: The "Reservoirs of Notions" is devoted to the laws themselves and legal literature, to study the mechanisms of environmental law regarding its gender dimensions and its interaction with collectivities, both as environmental organizations and the common good. Then, the study "Negotiating Climate Litigation" follows up on research of Phase I, in which we identified the negotiation of legal logic and social conditions as a necessary strategy to maintain the courts´ hegemonic authority, which we now analyze in rulings from Europe, South America and South Asia. Finally, the three case studies "Mobilizing Climate Protection Law" collect primary data on strategic litigation by the “Klimaseniorinnen”, Maria Khan / Pakistan and Lliuya / RWE. The first two cases are explicitly based on gender and human rights, while the third case uses civil law and is known for building bridges between the global north and south. As such, the studies allow for contrasting and intersectional differentiation. With this research, we transfer insights from (legal) gender studies to environmental law, advance legal discourse research at the interface of society and internal legal logic, and highlight environmental law perspectives beyond the primacy of technical solutions, to be discussed.

Research Period I "Focusing Collectivity. Gender, Sexual Orientation and Gender Identitity as Social Group(s) within European Asylum Law" (2018-2021)

Eventually European jurisprudence has recognized gender, sexual orientation and gender identity to constitute the bases of a particular social group within the meaning of the Geneva Refugee Convention. But what does such a process of recognition entail for the heteronormative structure of (asylum) law? Which (conflicting) logics interact within this multiple and highly dynamic legal complex and how come that courts, for instance, still hesitate when it comes to trans*-related claims? Whereas Refugee/Forced Migration Studies and Gender Studies discuss gender mainly alongside the doctrinal distinction between (cis)gender, sexual orientation and trans*identity, this project seeks to understand them, following its genealogy, through the legal framing as a particular social group, and thus, as a collective. Hence, this is an attempt to establish an analytic that may unravel a paradigmatic change within (asylum) law’s heteronormative logics; a dimension that is indiscernible for mainstream legal doctrine, yet could ultimately imply a partial breach with modern legal tradition as such. The project attempts to answer these questions based on a „close reading“ of decisions from the ECJ and ECHR and of relevant UNHCR guidelines, in that it understands court practice as a discourse that is not doctrinally closed, but already fragile inside. 

Publications and Events of Project A: European Asylum Law