Winning by Losing, or How to Navigate the Boundaries of the Law Through Climate Litigation

2026

Strategic and climate litigation as innovative tools in the law

Environmental law is an innovative field of law that often clashes with traditional modern law by restricting human freedoms to preserve non-human objects and subjects. In this sense, it is groups of people who, in their relationship with the legal system, create legal innovation by pushing and redefining the boundaries of the law. That is, to incorporate new rules and principles into the law, human groups tend to focus on social change within the boundaries permitted by the legal system itself. 

Both strategic litigation and climate litigation —as a specialized form of the former— are important drivers of this social change. By using existing legal tools, strategic litigation does not merely seek to win a case in court but aims, through that case, to produce an impact on society.

That is why, in the following posts, we will analyze relevant climate litigation cases to examine the transformative potential of this type of litigation. To do so, we will begin with this theoretical post, where we will delve into the idea of “inhabiting the boundaries,” proposed by critical cultural studies, and relate it to the idea of the boundaries of law or the legal system, to shed light on the possibilities of inhabiting the boundaries of law by designing new ways to use the rules of the legal system from outside it. 

Inhabiting the boundaries of Law

Addressing the climate and ecological crisis through the lens of law requires a systemic, interdisciplinary approach. In this approach, world-system analysis proposes, from a critique of capitalism, the concept of the border, noting that it is the space where incorporation occurs. In other words, the space where the process through which areas outside the capitalist system are reorganized and made functional to it takes place, as they are transformed into commodified social and economic structures.

Walter Mignolo takes a similar stance, proposing a decolonial border analysis in which the border is understood as a geographical, political, cultural, and epistemic construction created by colonial power, which delimits and hierarchizes knowledge, peoples, and territories from the perspective of European imperial expansion. This author proposes positioning oneself epistemically and politically from outside modern thought, under the idea of “inhabiting the border,” appropriating European modernity while simultaneously inhabiting coloniality.

If we consider the role of law as an ideological apparatus of the state, its relationship with colonialist modernity and the capitalist system is determined by this function. Law has a relationship of support and legitimization of hegemonic power, which is why we can say that the boundaries of modern capitalist law operate under the same dynamics as the boundaries defined by colonialism—that is, to enable the functioning of the system.

The boundaries of law, then, are those conceptual creations (constructed geographically, politically, culturally, and epistemically) that separate it from material reality, on the one hand, and from other disciplines of thought, on the other, thereby limiting its emancipatory possibilities. Taking up Mignolo’s invitation, we propose inhabiting the boundaries of law to exercise that emancipatory possibility by situating ourselves outside the limits of positive law, while appropriating the modern formal instruments it offers.

Photo: Javiera Pérez Santos

How can we inhabit the boundaries of law?

This is precisely what strategic litigation does. Its objective is to drive structural, social, and political transformations, for which it uses the legal tools at its disposal, accompanied by strategies and tools for communication, advocacy, and social mobilization. But what distinguishes strategic litigation from other strategies for social change is the use of instruments found within the boundaries of the law to promote change.

In Latin America in particular, strategic litigation has been used by NGOs and public-interest university clinics in the areas of environmental, ethnic, and gender rights. But in environmental matters, it has specific characteristics, as it commonly involves cases of collective rights and diffuse interests. Thus, it ties into the concept of climate litigation as that strategic litigation that specifically seeks to promote climate action by states, and which has seen a major boom in the last decade. Again, this type of litigation tends to be more likely to contribute to climate action when it incorporates the legal norms and logic of the existing regulatory framework on climate issues. 

But this use of available legal tools —incorporating the norms of the legal system— is not neutral; it is, precisely, strategic. Is an application, within the limits of the law, of certain legal doctrines and concepts that “can help disrupt dysfunctional institutional balances”. At this point, we believe it is essential to incorporate the idea of inhabiting the boundaries of law: while the instruments of modern law are used, they are employed from the perspective of those who inhabit coloniality —precisely the communities and ecosystems left out of consideration by the capitalist system.

This methodology, however, carries intrinsic risks, and often the prospect of winning a particular case may be distant and require a series of steps in which different cases become intertwined. However, considering that the objective of strategic and climate litigation is not necessarily or solely the individual rights at issue, but rather the possibility of social and political transformation, losing a case is a negative outcome that does not always deter litigation. In that sense, what matters is to critically evaluate and rigorously weigh the value a case could bring to assume that potential risk. 

For this reason, we propose being aware that we inhabit the boundary from a perspective of coloniality and that the use of instruments of positive law allows us to renegotiate the process of incorporating the border into the capitalist system. With this, the analysis of the trial’s opportunities is transformed, and it also considers the possibilities that, even if a trial is lost, it may result in a precedent that is not only legal but also political and social, serving to expose the situation of injustice being litigated and to generate meaningful change. 

References: 

Coral-Díaz, Ana, Londoño-Toro, Beatriz, and Muñoz-Ávila, Lina (2010). “The Concept of Strategic Litigation in Latin America: 1990–2010.” Vniversitas, 59(121), Javeriana University. https://doi.org/10.11144/Javeriana.vnij121.clae 

Cottyn, Hanne. (2017). A World-Systems Frontier Perspective on Land: Exploring the Uneven Trajectory of Land Rights Standardization in the Andes. Journal of World-Systems Research, 23(2), 515–539. https://doi.org/10.5195/jwsr.2017.698

Eslava, Gabriela; Karamé, Lama; Barragán, Maryluz; and Albarracín, Mauricio (2023). Handbook on Human Rights Litigation: From Theory to Practice. Lessons from Colombia and Lebanon. Bogotá: Center for the Study of Law, Justice, and Society (Dejusticia) and The Legal Agenda.

Kotzé, Louis, and Kim, Rakhyun. (2020). Exploring the analytical, normative, and transformative dimensions of earth system law. Environmental Policy and Law, 50, 457–470. https://doi.org/10.3233/EPL-201055. p. 458.

Mignolo, Walter, and Tlostanova, Madina. (2006). Theorizing from the borders: Shifting to geo- and body-politics of knowledge. European Journal of Social Theory, 9(2), 205–221. https://doi.org/10.1177/1368431006063333

Moore, Jason. (2000). Sugar and the expansion of the early modern world-economy: Commodity frontiers, ecological transformation, and industrialization. Review (Fernand Braudel Center), 23(3), 409–433. http://www.jstor.org/stable/40241510. 

Rodríguez Garavito, César (Ed.) (2022). Litigating the climate emergency: Citizen mobilization in the courts to address the environmental crisis and secure basic rights. Buenos Aires, Argentina: Siglo XXI Editores.

Villegas, Sabrina. (2016). A Theoretical Proposal for the Analysis of the Relationship Between Law and Social Struggles. Argumentos Journal, (2), 122–138. Ricardo C. Núñez Center for Professional Development. Retrieved from http://revistaargumentos.justiciacordoba.gob.ar/