Political rights, civil disobedience, climate change and the law
(updated 3 December 2020)
In the previous weeks we often talked about institutional actors such as international organizations, governments, courts, administrative agencies and companies. However, we already encountered another key participant in the political and legal arena, namely social movements. Social movements are at the frontline of climate action, just as they are the driving force of environmental concerns in general. Individuals and communities directly affected by pollution, industrial accidents or other hazards may be able to force the public to pay attention to issues previously ignored; collaborating with scientists and organizing as NGOs or political groups, they may succeed in mobilizing political, economic and legal resources for environmental objectives. More generally speaking, social movements have been playing a decisive role in many, if not all fundamental political changes over the past century, including the US civil rights movement, the anti-apartheid movement in South Africa and around the world, the women’s and the LGBT liberation movements. In this blogpost, we look at the role of social movements in the struggle on climate change; we will zoom in on a specific aspect of social movements, namely the exercise of civil and political rights such as the right of assembly and the freedom of speech. We will also look at civil disobedience, and discuss its legal implications.
→ In how far are social movements “transnational” phenomena?
Law, law enforcement and political dissent
For much of history, in many societies and for many communities and individuals, the organization of interests conflicting with the dominant order, or even the mere expression of such views, was and is prohibited under law (and dangerous in practice). To this day, labor unionists, civil rights lawyers or environmentalists (to name a few groups targeted in many countries across the world) frequently become victims of murder, violence and intimidation exercised or condoned by the state.
A tragic example is the murder of 42-year old indigenous leader and environmentalist Berta Cáceres in Honduras, who was killed in March 2016 over her activism. The Honduran government not only failed to protect her despite continuous death threats, and even attempted to frame environmentalist Gustavo Castro Soto, who was injured in the same attack, as the potential suspect in the killing. Environmentalists and land protectors are highly at risk around the world. In 2019 alone, 212 and and environmental activists were killed; most of them in Colombia, the Philippines and Brazil. Many of these environmental activists are local residents and members of indigenous communities, for whom environmental degradation is directly linked to the destruction of their land and property and thereby of their livelihoods and their very existence.
For activists like Berta Cáceres, the expression of dissenting political views or even the mere invocation of civil and democratic rights is frequently dangerous, and often enough outlawed in some form. The fact that most countries recognize, in principle, the rights of assembly, of political expression, of democratic participation and of the rule of law should not distract from this reality. Even in democratic countries with relatively robust legal institutions, the protection of these rights often remains precarious or partial: while parts of the population may enjoy a relatively high degree protection of their civil and political rights, such protection may not extend to more marginalized groups.
When is the exercise of civil and political rights lawful, and who decides on this question?
When talking about the legality of the exercise of civil and political rights, a fundamental dilemma is that the institutions who decide on the question are often no neutral arbiters. Demonstrations and political speech often target the dominant order or ruling establishment. The latter frequently encompasses the legislature, the executive and the judiciary, which are precisely the institutions which determine the framework within which the exercise of political rights is considered to be lawful. Consequently, criminalization is always a potential tool by those in power to suppress political dissent. The dividing line between the legitimate exercise of political rights and illegal behavior, and between legitimate policing and illegal repression of political dissent is therefore often contested. For example, imagine a situation where the police prohibits a planned demonstration on the basis of security concerns, and the demonstration is held in defiance of the prohibition because the organizers view these concerns as a pretense to quell dissent. Do the protesters legitimately exercise their political rights, or do they simply breach the law? Does the police engage in the legitimate policing of illegal behavior, or is it illegally suppressing the exercise of political rights?
This question can only be answered on the basis of the broader context of the situation, and will therefore usually be contested. This point is illustrated by the following videoclip, which shows Martin Luther King respond to interview questions on a protest he led in defiance of a court order prohibiting the protest:
Social movements and civil disobedience
Civil disobedience (or resistance) describes the violation of certain laws. It is employed usually by social movements to achieve a political objective. Civil disobedience often forms part of a larger strategy, which also includes political, legal, religious or moral elements. Many social movements have engaged in civil disobedience, including Mahatma Ghandi’s decolonialization movement, Martin Luther King’s civil rights movement, the women’s movement and the LGBT movement.
We saw in the previous section that the dividing line between lawful and unlawful exercise of political rights is often contested. In practice, most (if not all) social movements are confronted with reproaches of engaging in illegal behavior. Consequently, the issue of civil disobedience is relevant even for those movements that do not explicitly engage in such strategy.
Objective
Communities and individuals may engage in civil disobedience for a variety of reasons. The breach of certain laws may be viewed as justified because they are perceived as immoral. For example, abolitionists in the US refused to adhere to laws requiring them to return fugitive slaves. Similarly, when citizens used their own cars to transport Syrian refugees stranded in Hungary to Austria in 2015, they did so despite the possibility of severe legal consequences, with many facing human trafficking charges.
The breach of law may also aim to expose the implication of government, police and judiciary in a situation considered to be unjust or immoral. For example, the Civil Rights Movement’s acts of civil disobedience (e.g. staging a protest in defiance of a court order, or breaching segregation laws) frequently encountered brutal responses by the local and state police forces, which were also supported or condoned by the judiciary and political branches. These responses illustrated the extent to which all branches of government in the American South were implicated in upholding a racist regime.
The breach of law may also be an effective way to garner public attention. For example, the US-American group ACT UP engaged in civil disobedience in the 1980s in order to attack the government’s wilful ignorance of the AIDS crisis and institutional discrimination against the LGBT population, and to demand a greater allocation of resources to AIDS research.
Non-violence
Many social movements commit to the principle of non-violence. This includes, most notably, Mahatma Gandhi’s campaign for the independence of India and Martin Luther King’s Civil Right Movement, both of which prominently engaged in civil disobedience. However, the exercise of political rights — and, by extension, civil disobedience — is often controversial, or (as we saw) criminalized in principle or in practice. Consequently, even non-violent forms of actions frequently face allegations of violence.
Civil disobedience and climate change
Civil disobedience also plays an important role in the climate change movement. This has become particularly true over the recent years, when the urgency of the matter became ever clearer, while frustration grew over the decade-long failure of governments to act. In “This Changes Everything”, Naomi Klein tells the following story:
“In December 2012, Brad Werner — a complex systems researcher with pink hair and a serious expression — made his way through the throng of 24,000 earth and space scientists at the Fall Meeting of the American Geophysical Union in San Francisco. That year’s conference had some big-name participants, from Ed Stone of NASA’s Voyager project, explaining a new milestone on the path to interstellar space, to the filmmaker James Cameron, discussing his adventures in deep-sea submersibles. But it was Werner’s own session that was attracting much of the buzz. It was titled “Is Earth F**ked?” (full title: “Is Earth F**ked? Dynamical Futility of Global Environmental Management and Possibilities for Sustainability via Direct Action Activism”).
Standing at the front of the conference room, the University of California, San Diego professor took the crowd through the advanced computer model he was using to answer that rather direct question. He talked about system boundaries, perturbations, dissipation, attractors, bifurcations, and a whole bunch of other stuff largely incomprehensible to those of us uninitiated in complex systems theory. But the bottom line was clear enough: global capitalism has made the depletion of resources so rapid, convenient, and barrier-free that “earth-human systems” are becoming dangerously unstable in response. When a journalist pressed Werner for a clear answer on the “Is Earth f**ked” question, he set the jargon aside and replied, “More or less.”
There was one dynamic in the model, however, that offered some hope. Werner described it as “resistance” — movements of “people or groups of people” who “adopt a certain set of dynamics that does not fit within the capitalist culture.” According to the abstract for his presentation, this includes “environmental direct action, resistance taken from outside the dominant culture, as in protests, blockades and sabotage by Indigenous peoples, workers, anarchists and other activist groups.” Such mass uprisings of people — along the lines of the abolition movement and the civil rights movement — represent the likeliest source of “friction” to slow down an economic machine that is careening out of control. This, he argued, is clear from history, which tells us that past social movements have “had tremendous influence on … how the dominant culture evolved.” It stands to reason, therefore, that “if we’re thinking about the future of the earth, and the future of our coupling to the environment, we have to include resistance as part of that dynamics.” And that, Werner said, is not a matter of opinion, but “really a geophysics problem.” Put another way, only mass social movements can save us now. Because we know where the current system, left unchecked, is headed. We also know, I would add, how that system will deal with the reality of serial climate-related disasters: with profiteering, and escalating barbarism to segregate the losers from the winners. To arrive at that dystopia, all we need to do is keep barreling down the road we are on. The only remaining variable is whether some countervailing power will emerge to block the road, and simultaneously clear some alternate pathways to destinations that are safer. If that happens, well, it changes everything.”
A prominent example of civil disobedience relating to climate change is the action of Tim DeChristopher. In December 2008, the Bush administration’ Bureau of Land Management auctioned off leases for oil and gas exploration on public land in Utah; the auction was rushed so that it could be finalized before the Obama administration would take over. DeChristopher took part in the auction, and bid successfully on a number of leases without intent of paying, thereby disrupting and delaying the auction. DeChristopher was ultimately convicted of two felonies, namely the violation of federal law relating to the leases, and making false statements, and was sentenced to two years in prison. The government later rescinded its decision to auction off the leases for the land in question; DeChristopher’s action therefore had the very direct effect of protecting public land from a decision — to be invalidated later — to allow oil and gas exploration.
→ what is the transnational legal dimension of Tim DeChristopher’s action?
Examples of civil disobedience relating to climate change
Another example of large-scale civil disobedience relating to climate change from the US are the blockades at Standing Rock that took place in 2016. One part of the Dakota Access Pipeline was to be constructed in the Sioux reservation of Standing Rock, where months-long protests halted the pipeline construction. Police repression of the protests led to numerous injuries. The protests were not only successful in drawing national and international attention to the project, but also in highlighting the significant environmental dangers and the high frequency of pipeline spills. Moreover, banks involved in the financing of the project (such as ING) have been faced with protests and calls for divestment. The Obama administration halted the project in order to explore alternative routes; however, the Trump administration re-approved the project, which was completed in 2017.
In Europe, recent examples of civil disobedience relating to climate change include “Ende Gelände”, a series of occupations of open-pit lignite mines in Germany. Lignite (or brown coal) is the dirtiest fossil fuel; open pit mining requires the demolition of vast arrays of land, and the resettlement of complete villages. Lignite mining is a heavily loss-making activity, and requires massive public subsidies to operate. Over the past years, various open-pit mines in Germany had been targeted by large direct actions involving thousands of participants, often with strong support from the local population.
In the Netherlands, an example of civil disobedience related to climate change is the occupation of the coal harbor in the Amsterdam port in 2016 and 2017 (“#kolenuit”). The Amsterdam coal harbor is among the largest in Europe, and supplies not only the coal-fired power plant located Amsterdam itself, but also numerous other plants in Western Europe. In June 2016, the coal port was occupied by a number of activists. The video shows the entry of the activists to the terrain of the coal port, and the occupation of one of the large loading cranes. The action was taken precisely a year after the Urgenda decision was passed, and aimed to draw attention to the lack of progress in cutting CO2 emissions in the Netherlands.
→ At about 4:45 in the video, one of the participants of the action explains her motivation in violating the law. Consider the following questions:
- Which charges could be brought against participants of civil disobedience actions? Try to also think of less obvious ones.
- Which legal arguments can be invoked in defence of participants of civil disobedience actions? Try to also think of less obvious ones.
- How does civil disobedience relate to other tactics pursued by the climate change movement, including litigation, protests and political lobbying? Do you believe that civil disobedience is effective? Is it justified?
