Papers & Reports by Suryapratim Roy
Frontline, 2024
In this review essay, I argue that we should take Ambedkar's disenchantment with legal instiution... more In this review essay, I argue that we should take Ambedkar's disenchantment with legal instiutions and the constitution seriously. In this way, we would keep alive his radical ethics and appreciate his project of developing an agonistic constitution.
European Energy Law Report XV, 2025
In this paper, we identify trends in climate litigation involving energy companies in the Europea... more In this paper, we identify trends in climate litigation involving energy companies in the European legal order. We first focus on three trends noticed in cases against or affecting companies: corporate responsibility in relation to mitigation and adaptation, climate disclosures and greenwashing, and infrastructure permitting and impact assessment. We then examine anti-regulatory litigation cascades, focusing on Investor-State Dispute Settlement litigation.
Frontline, 2023
In this piece for Frontline's year end issue, I analyse the claim that the Indian constitution sh... more In this piece for Frontline's year end issue, I analyse the claim that the Indian constitution should be rewritten, and that it is fundamentally colonial in nature. Engaging with Bibek Debroy's opinion piece, and Arghya Sengupta's book on The Colonial Constitution, I argue that characterising the constitution as colonial renders invisible the dominant role of the partition and communal conflict in shaping the indigenous ‘ours’. Further, in collapsing the constitution in the constitutional text, such accounts reduce constitutionalism to legislative activity. This is the real challenge that the Indian constitution faces - the threat of redundancy.
Yale Journal of International Law, 2023
In this Essay, we demonstrate that there is no legal way under current
European Union (EU, the Un... more In this Essay, we demonstrate that there is no legal way under current
European Union (EU, the Union) law to adopt a citizenship-based ban on
entering the Schengen zone. The de facto national-level ban against Russian citizens introduced by Poland, Finland, and the Baltic States breaches EU law. Further, amending the law to allow for a citizenship-based ban goes against the core values the Union is based upon, pitting populist proposals against the rule of law. References to “wholly exceptional circumstances” would not help either. Any proposal to ban Russian citizens’ entry would prevent dissenters and deserters, who are unwilling to contribute to Russian President Vladimir Putin’s
war, from seeking refuge in EU territory and imply impermissible
discrimination. It is no surprise that such a proposal was defeated in the Council of the EU (Council). After this defeat, however, the Baltic States, Poland, and Finland proceeded to implement such a nationality-based ban on entry at the national level in breach of EU law, using Russian citizenship as a ground for refusal of entry within their borders as well as into other Schengen states. Central to the citizenship-based travel ban is a replacement of the rule of law reasoning with politically motivated retribution, which is prima facie unrelated to any legitimate aim that the measure could achieve. Such a replacement counterproductively strengthens Putin’s totalitarian regime and its military: those unable to flee to Europe may be conscripted for Russia’s war of aggression.
The de facto ban, even if outright unlawful, is difficult, in practice, to reverse. This difficulty makes it imperative for other Member States, as well as theinstitutions of the Union, to put sufficient pressure on the violators to save the Schengen system from unlawful populist fragmentation. The Union’s strength is precisely in its safeguards against acting along the populist lines the ban implies, rather than one of its weaknesses, contrary to the alarmist agitation of some Member States. We demonstrate that the debate around the blanket citizenship-based visa and entry ban, as well as the Union’s unwillingness and powerlessness
to prevent Member States’ arbitrary replacement of the law with hateful
citizenship-based retribution, is a stress-test of the rule of law in the EU.
Frontline , 2023
This essay reviews Scott Stroud, The Evolution of Pragmatism in India (University of Chicago Pres... more This essay reviews Scott Stroud, The Evolution of Pragmatism in India (University of Chicago Press 2023) and Becoming Babasaheb (Harper Collins 2023)
Mark Tushnet and Dimitry Kochenov (eds), Research Handbook on the Politics of Constitutional Law (Edward Elgar), 2023
Over the last decade, majoritarian violence and religious divisiveness have been common in India.... more Over the last decade, majoritarian violence and religious divisiveness have been common in India. A central facet of such violence and divisiveness is justification through law, including the law of citizenship. In this paper, we show that contrary to scholarship on the death of the Indian constitution, such legislative acts have been enabled by the Indian constitution. During the process of drafting the constitution, undivided India was partitioned into India and Pakistan, and communal nationalism bled into the drafting process. Post-Partition divisiveness was accommodated by the Constituent Assembly by deferral of provisions on citizenship to ordinary law, and insertion of provisions that reflected the position of the religious right, namely the prohibition of cow slaughter within the seemingly innocuous Directive Principles of State Policy. These elements were mobilized by the religious right over time. Specifically, we show that the current Bharatiya Janata Party (BJP) government has used citizenship law to discursively reterritorialise India into a Hindu state via constructions of the Indian citizen.
We argue that the current political climate has been constitutionally accommodated; this is why despite there being no recent constitutional change, the process of creating a Hindu state is being achieved through law. A key tool in this process is citizenship law, and the accompanying political discourse on Indian citizenship.
Forthcoming in Matteo Fermeglia, Ivano Alogna, Carole Biliet and Alina Holzhausen (eds) Climate Change Litigation in Europe: Comparative and Sectoral Perspectives and the Way Forward, Intersentia, 2023, 2023
Climate change jurisprudence is susceptible to transnational borrowing - it develops incrementall... more Climate change jurisprudence is susceptible to transnational borrowing - it develops incrementally, and diagonally, and the decisions of lower-courts, and even overturned judgements, influence rulings in other jurisdictions.
People v Arctic Oil is a full-bench judgement and decision delivered by the Norwegian Supreme Court in December 2020. It was a case where NGOs filed an application to quash licences issued by the Norwegian government for petroleum exploration in the Barents Sea. The primary claim was that the decision to allow drilling for oil does not take into account extraterritorial emissions, and therefore violates Article 112 of the Norwegian constitution that protects the right to a healthy environment. The case was decided in favour of the government at all three stages, but there was incremental jurisprudence at all levels, and a dissenting opinion at the Supreme Court that broke new ground.
Environmental law in the time of climate change plays a crucial role in informing energy policy. Drawing on the judgements in People v Arctic Oil at different stages, and particularly the minority opinion by the Supreme Court, this chapter focuses on two such aspects:
(1) the relationship between rights and strategic environmental assessments which requires the citizenry to be appraised of the effects on climate change by energy policy even at an early stage, and
(2) the principle of non-regression, which could require the government to justify their decisions when energy policy results in decarbonisation backsliding.
Stefan Weishaar and Kars de Graaf (eds) The Future of Environmental Law: Ambition and Reality (Edward Elgar, 2023)
The decision of the Norwegian Supreme Court in People v Arctic Oil deals with the question of whe... more The decision of the Norwegian Supreme Court in People v Arctic Oil deals with the question of whether licensing decisions for oil exploration are invalid for not accounting for combustion emissions from oil exports. Notably, the plaintiffs invoke the constitutional right to a clean and healthy environment for challenging such decisions. As the case made its way from the District Court to the Supreme Court, it developed distinct jurisprudence on the scope of rights and the role of impact assessment with respect to climate harm. At the time of writing this chapter, a claim based on similar facts is pending before the European Court of Human Rights. This Article analyses the judgement within the political context of Norwegian oil policy, focusing on the policy coalition that preferred a ‗weak sustainability' to a new policy coalition in favour of stronger environmental protection. It then suggests two takeaways for future climate litigation: the potential of the right to a healthy environment in shaping climate policy, and the logic in viewing extraterritorial emissions as a domestic policy concern.
Irish Supreme Court Review , 2021
While climate litigation is on the rise, there is need for legal nuance on the issues negotiated ... more While climate litigation is on the rise, there is need for legal nuance on the issues negotiated in courts.There is a tendency to adopt a knee-jerk normative position on human rights or separation of powers without appreciating how such doctrines are debated, or the political informants of such debates. Further, climate cases have varied afterlives – they may well influence legal doctrine in general within the jurisdictions where they are decided, and travel transnationally to influence climate cases in other jurisdictions. For this reason, the way decisions are reached deserve our attention more than the decisions themselves.
One of the cases that has received global attention is the Irish Supreme Court judgement of Friends of the Irish Environment v Ireland. The plaintiffs challenged the National Mitigation Plan developed under the Climate Change and Low Carbon Development Act 2015 for non-compliance with constitutional law, international law and human rights. The High Court found for the government, and on leapfrog appeal, the Supreme Court unanimously reversed the decision and quashed the Climate Plan. After the Supreme Court decision, a parliamentary process had been instituted, which led to the 2021 Climate Amendment Act. Both the High Court and Supreme Court judgments sparked critique, with the Supreme Court judgment receiving more favourable commentary owing to its decision on behalf of the plaintiffs.
In this paper, I suggest that notwithstanding the final decisions, the High Court judgement might provide more ammunition for future climate litigation, while the Supreme Court judgement narrows the scope not only of climate-related claims, but also standing of NGOs in rights-based litigation in general. Having said that, the way the Supreme Court reasoned might have been the most effective way to spur climate action in Ireland as it facilitated a constitutional collaboration among political actors. With respect to the transnational sphere of climate litigation, the contribution of the judgement is the intelligibility-specificity property of climate regulation, where such regulation should be both specific enough and clear for the citizenry to follow.
Dublin Review of Books , 2021
This essay reviews Sanjay Krishnan's VS Naipaul's Journeys (Columbia University Press, 2020)
Law and Policy Responses to COVID-19 in Ireland: Supporting Individuals, Communities, Businesses, and the Economy, 2020
This is a section of ‘Law and Policy Responses to COVID-19 in Ireland: Supporting Individuals, Co... more This is a section of ‘Law and Policy Responses to COVID-19 in Ireland: Supporting Individuals, Communities, Businesses, and the Economy', Law and Rights Observatory, Trinity College Dublin. The full report can be found here: https://www.tcd.ie/law/news-events/covid-19.public-policy-report.php.
Dimitry Kochenov and Kristin Surak (eds) Citizenship and Residence Sales: Rethinking the Boundaries of Belonging, Cambridge University Pres, 2021
In this chapter I examine recent scholarship on the sale of citizenship. Specifically, I discuss ... more In this chapter I examine recent scholarship on the sale of citizenship. Specifically, I discuss Ana Tanasoca’s historical sensitivity to the sale of citizenship, Luca Mavelli’s Foucauldian account of commodification, and Désirée Lim’s account of expressive discrimination. As with any nuanced political inquiry, there are conceptual, ethical and empirical choices that inform such commentary. In making epistemic choices, an empirical claim may well be premised on an implicit ethical argument, a normative argument may be made by selectively picking a certain sort of empirical inquiry, or one among several conceptualisations of a concept may be passed off as the only one. There is therefore the possibility of a ‘streetlight effect’ where the confines of an inquiry are conducted within an already illuminated patch. I show that this phenomenon applies to the scholarly works discussed in this chapter: Commentary on the sale of citizenship is illuminated by a priority for the claims of community on ‘Who Belongs’ over the claims of access on ‘Who Should Get In’. There is a discursive confounding of ethical, conceptual and empirical claims operating under the streetlight of a presupposition that the claims of a pre-existing national community should determine the claims of access.
The chapter is divided into three parts:
(1) First, I elaborate on what I mean by a priority of claims of community over claims of access. To do so, I reconstruct a celebrated debate between Joseph Carens and David Miller, and show a continuity in the argumentative strategies employed in general criticisms of open borders and specific criticisms of the sale of citizenship;
(2) Second, I provide a brief account of the phenomenon of investment migration, including the sale of citizenship and residency, in order to appreciate specific criticisms of the sale of citizenship; and
(3) Third, I reconstruct recent scholarly work on investment migration, and show that a general disposition towards divining the preferences of a pre-existing national community and attributing moral weight to such preferences illuminates specific criticisms of the sale of citizenship.
At stake is not only good argumentative practice. Critical commentary on investment migration influences both public discourse and official documents. Without specific findings on how and in what form the sale of citizenship is problematic, a general indictment of the phenomenon has the expressive effect of adding to the exclusionary sentiment that is a defining feature of contemporary public life.
Swethaa Ballakrishnen and Sara Dezalay (eds) Invisible Institutionalisms: Collective Reflections on the Shadows of Legal Globalisation (Hart Publishing), 2021
This chapter seeks to appreciate and critique Rahela Khorakiwala's project on the visual culture... more This chapter seeks to appreciate and critique Rahela Khorakiwala's project on the visual culture of law in India. It first situates this project within scholarship on the materiality of law, in the hope that other streams of analytical inquiry could open up the project further. Second, it identifies a conceptual distinction between legal expression, representation and dissimulation, which leads to specific inquiries into the relationship between actors, artefacts and processes. Third, it suggests that approaching visual culture through the expressive effect of ethnographic vignettes would illuminate the hold the visual has on the social imagination. The focus on expressive effect in turn allows for identifying the agentic potential of stakeholders that artefacts may circumscribe or afford. This opens up the possibility of conducting inquiries on visual justice.
International Journal for the Semiotics of Law, 2020
In this article I engage with Tarunabh Khaitan’s scholarship on expressive norms. Khaitan argues ... more In this article I engage with Tarunabh Khaitan’s scholarship on expressive norms. Khaitan argues that the expressive value of a legal speech-act is independent of its consequences. I query the analytical moves that inform this argument. Specifically, I show that (1) Khaitan’s account of the illocutionary force of a speech-act is a particular displacement of linguistic theory into constitutional philosophy; (2) using Kazuo Ishiguro’s The Remains of the Day as a talking point, the focus on the illocutionary force of a legal expression can confound constitutive reasons that lend weight to such an expression; and (3) the claim that expressive norms are consequence-independent is diluted once it becomes evident that such a claim is premised on epistemic problems rather than moral arguments. Finally, I argue that to work towards a society characterised by non-humiliation, it pays to focus on the constitutive reasons and consequences of expressive norms.
Carbon & Climate Law Review, 2019
On 9 October 2018 the Hague Court of Appeals in the Netherlands upheld the judgement of the Distr... more On 9 October 2018 the Hague Court of Appeals in the Netherlands upheld the judgement of the District Court in the influential Urgenda case. The Court also entertained a cross-appeal filed by the Urgenda Foundation, and ruled that the European Convention on Human Rights is directly applicable in determining the State's duty of care in protecting its citizens from imminent climate harm. In addition to developing human rights jurisprudence on climate targets, the Court of Appeals also addresses the issue of compliance with European Union law. The judgment has attracted several lines of critique, including the possibility of adversely affecting the internal market of the European Union, the propensity of the judgment to argue from physical necessity rather than law, and the indefensible concentration on mitigation rather than adaptation. This Article briefly summarises the District Court judgment, identifies the primary jurisprudential moves made by the Court of Appeals, and responds to some of the criticisms levelled against the judgement.
Josephine van Zeben and Kenneth Richards (eds) Policy Instruments in Environmental Law (Cheltenham: Edward Elgar), 2020
This contribution focuses on how distributional concerns may be understood with respect to an env... more This contribution focuses on how distributional concerns may be understood with respect to an environmental policy instrument. Distribution is identified as a separate analytical category that reveals criteria for policy-making and instrument design. Subsequently, a typology of distributional concerns is developed that would inform a policy instrument, concentrating on the distribution of benefits and burdens, distribution of membership, distribution of responsibilities and distribution of capabilities. This typology is then applied to reveal distributional choices in a specific policy instrument, namely the EU ETS.
Journal of Comparative Law, 2018
This article reviews U. Belavusau & A. Gliszczyńska-Grabias (eds.), Law and Memory: Towards Legal... more This article reviews U. Belavusau & A. Gliszczyńska-Grabias (eds.), Law and Memory: Towards Legal Governance of History (Cambridge, Cambridge University Press, 2017). In the process, some of the primary conceptual moves in understanding and evaluating memory laws are identified, including proscriptive and prescriptive laws, laws that explicitly endorse or silence some aspects of history, expressive and substantive laws. To this, a couple of additional ways to think about the operation of memory laws have been suggested in this article: de jure regulation with de facto incitement, glorification as against reparation, institutional as against individual. In terms of categorization, it has been argued that though it is not necessary to draw a line between “memory laws” and “laws affecting memory”, it is important to distinguish between Collective Identity Regulation and Memory Rule of Law.
German Law Journal , 2018
In this essay I argue that distributional concerns constitute the heart of environmental regulati... more In this essay I argue that distributional concerns constitute the heart of environmental regulation; they are not restricted to pre-policy values or post-policy effects that need to dealt with. On the contrary, they characterise the selection of particular environmental policies, and their properties. Different interests, preferences and values with respect to a policy instrument can be made commensurable using the language of distribution. The centrality of distribution as an organising principle may be elusive on account of it being too vaguely construed or too narrowly defined. This necessitates the articulation of a taxonomy of distributional concerns. To this end, it is suggested that the distribution of benefits and burdens, distribution of responsibility, distribution of membership and distribution of capabilities could be useful categories to develop and assess environmental regulation. I then apply this framework to an unsuspecting candidate, the European Union Emissions Trading Scheme (EU ETS).
European Energy Law Report, 2017
In a much-publicised judgment, The Hague District Court agreed with a group of private petitioner... more In a much-publicised judgment, The Hague District Court agreed with a group of private petitioners that the Dutch government should take more action on climate change. The judgment is currently being appealed, and has received criticism from several quarters. Some scholars question the compatibility of the decision with EU law. This chapter addresses this criticism, and in the process, explains that this issue points to the core of the case: the distribution of responsibility for protecting the citizen from climate harm. With regard to EU law, it argues that the decision is in compliance with primary law, and it is premature to arrive at a conclusive judgment on compliance with secondary law on climate change.
This chapter details the assessment of the Quality of Nationality in China and India as part of t... more This chapter details the assessment of the Quality of Nationality in China and India as part of the Henley & Partners-Kochenov Quality of Nationality Index.
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Papers & Reports by Suryapratim Roy
European Union (EU, the Union) law to adopt a citizenship-based ban on
entering the Schengen zone. The de facto national-level ban against Russian citizens introduced by Poland, Finland, and the Baltic States breaches EU law. Further, amending the law to allow for a citizenship-based ban goes against the core values the Union is based upon, pitting populist proposals against the rule of law. References to “wholly exceptional circumstances” would not help either. Any proposal to ban Russian citizens’ entry would prevent dissenters and deserters, who are unwilling to contribute to Russian President Vladimir Putin’s
war, from seeking refuge in EU territory and imply impermissible
discrimination. It is no surprise that such a proposal was defeated in the Council of the EU (Council). After this defeat, however, the Baltic States, Poland, and Finland proceeded to implement such a nationality-based ban on entry at the national level in breach of EU law, using Russian citizenship as a ground for refusal of entry within their borders as well as into other Schengen states. Central to the citizenship-based travel ban is a replacement of the rule of law reasoning with politically motivated retribution, which is prima facie unrelated to any legitimate aim that the measure could achieve. Such a replacement counterproductively strengthens Putin’s totalitarian regime and its military: those unable to flee to Europe may be conscripted for Russia’s war of aggression.
The de facto ban, even if outright unlawful, is difficult, in practice, to reverse. This difficulty makes it imperative for other Member States, as well as theinstitutions of the Union, to put sufficient pressure on the violators to save the Schengen system from unlawful populist fragmentation. The Union’s strength is precisely in its safeguards against acting along the populist lines the ban implies, rather than one of its weaknesses, contrary to the alarmist agitation of some Member States. We demonstrate that the debate around the blanket citizenship-based visa and entry ban, as well as the Union’s unwillingness and powerlessness
to prevent Member States’ arbitrary replacement of the law with hateful
citizenship-based retribution, is a stress-test of the rule of law in the EU.
We argue that the current political climate has been constitutionally accommodated; this is why despite there being no recent constitutional change, the process of creating a Hindu state is being achieved through law. A key tool in this process is citizenship law, and the accompanying political discourse on Indian citizenship.
People v Arctic Oil is a full-bench judgement and decision delivered by the Norwegian Supreme Court in December 2020. It was a case where NGOs filed an application to quash licences issued by the Norwegian government for petroleum exploration in the Barents Sea. The primary claim was that the decision to allow drilling for oil does not take into account extraterritorial emissions, and therefore violates Article 112 of the Norwegian constitution that protects the right to a healthy environment. The case was decided in favour of the government at all three stages, but there was incremental jurisprudence at all levels, and a dissenting opinion at the Supreme Court that broke new ground.
Environmental law in the time of climate change plays a crucial role in informing energy policy. Drawing on the judgements in People v Arctic Oil at different stages, and particularly the minority opinion by the Supreme Court, this chapter focuses on two such aspects:
(1) the relationship between rights and strategic environmental assessments which requires the citizenry to be appraised of the effects on climate change by energy policy even at an early stage, and
(2) the principle of non-regression, which could require the government to justify their decisions when energy policy results in decarbonisation backsliding.
One of the cases that has received global attention is the Irish Supreme Court judgement of Friends of the Irish Environment v Ireland. The plaintiffs challenged the National Mitigation Plan developed under the Climate Change and Low Carbon Development Act 2015 for non-compliance with constitutional law, international law and human rights. The High Court found for the government, and on leapfrog appeal, the Supreme Court unanimously reversed the decision and quashed the Climate Plan. After the Supreme Court decision, a parliamentary process had been instituted, which led to the 2021 Climate Amendment Act. Both the High Court and Supreme Court judgments sparked critique, with the Supreme Court judgment receiving more favourable commentary owing to its decision on behalf of the plaintiffs.
In this paper, I suggest that notwithstanding the final decisions, the High Court judgement might provide more ammunition for future climate litigation, while the Supreme Court judgement narrows the scope not only of climate-related claims, but also standing of NGOs in rights-based litigation in general. Having said that, the way the Supreme Court reasoned might have been the most effective way to spur climate action in Ireland as it facilitated a constitutional collaboration among political actors. With respect to the transnational sphere of climate litigation, the contribution of the judgement is the intelligibility-specificity property of climate regulation, where such regulation should be both specific enough and clear for the citizenry to follow.
The chapter is divided into three parts:
(1) First, I elaborate on what I mean by a priority of claims of community over claims of access. To do so, I reconstruct a celebrated debate between Joseph Carens and David Miller, and show a continuity in the argumentative strategies employed in general criticisms of open borders and specific criticisms of the sale of citizenship;
(2) Second, I provide a brief account of the phenomenon of investment migration, including the sale of citizenship and residency, in order to appreciate specific criticisms of the sale of citizenship; and
(3) Third, I reconstruct recent scholarly work on investment migration, and show that a general disposition towards divining the preferences of a pre-existing national community and attributing moral weight to such preferences illuminates specific criticisms of the sale of citizenship.
At stake is not only good argumentative practice. Critical commentary on investment migration influences both public discourse and official documents. Without specific findings on how and in what form the sale of citizenship is problematic, a general indictment of the phenomenon has the expressive effect of adding to the exclusionary sentiment that is a defining feature of contemporary public life.
European Union (EU, the Union) law to adopt a citizenship-based ban on
entering the Schengen zone. The de facto national-level ban against Russian citizens introduced by Poland, Finland, and the Baltic States breaches EU law. Further, amending the law to allow for a citizenship-based ban goes against the core values the Union is based upon, pitting populist proposals against the rule of law. References to “wholly exceptional circumstances” would not help either. Any proposal to ban Russian citizens’ entry would prevent dissenters and deserters, who are unwilling to contribute to Russian President Vladimir Putin’s
war, from seeking refuge in EU territory and imply impermissible
discrimination. It is no surprise that such a proposal was defeated in the Council of the EU (Council). After this defeat, however, the Baltic States, Poland, and Finland proceeded to implement such a nationality-based ban on entry at the national level in breach of EU law, using Russian citizenship as a ground for refusal of entry within their borders as well as into other Schengen states. Central to the citizenship-based travel ban is a replacement of the rule of law reasoning with politically motivated retribution, which is prima facie unrelated to any legitimate aim that the measure could achieve. Such a replacement counterproductively strengthens Putin’s totalitarian regime and its military: those unable to flee to Europe may be conscripted for Russia’s war of aggression.
The de facto ban, even if outright unlawful, is difficult, in practice, to reverse. This difficulty makes it imperative for other Member States, as well as theinstitutions of the Union, to put sufficient pressure on the violators to save the Schengen system from unlawful populist fragmentation. The Union’s strength is precisely in its safeguards against acting along the populist lines the ban implies, rather than one of its weaknesses, contrary to the alarmist agitation of some Member States. We demonstrate that the debate around the blanket citizenship-based visa and entry ban, as well as the Union’s unwillingness and powerlessness
to prevent Member States’ arbitrary replacement of the law with hateful
citizenship-based retribution, is a stress-test of the rule of law in the EU.
We argue that the current political climate has been constitutionally accommodated; this is why despite there being no recent constitutional change, the process of creating a Hindu state is being achieved through law. A key tool in this process is citizenship law, and the accompanying political discourse on Indian citizenship.
People v Arctic Oil is a full-bench judgement and decision delivered by the Norwegian Supreme Court in December 2020. It was a case where NGOs filed an application to quash licences issued by the Norwegian government for petroleum exploration in the Barents Sea. The primary claim was that the decision to allow drilling for oil does not take into account extraterritorial emissions, and therefore violates Article 112 of the Norwegian constitution that protects the right to a healthy environment. The case was decided in favour of the government at all three stages, but there was incremental jurisprudence at all levels, and a dissenting opinion at the Supreme Court that broke new ground.
Environmental law in the time of climate change plays a crucial role in informing energy policy. Drawing on the judgements in People v Arctic Oil at different stages, and particularly the minority opinion by the Supreme Court, this chapter focuses on two such aspects:
(1) the relationship between rights and strategic environmental assessments which requires the citizenry to be appraised of the effects on climate change by energy policy even at an early stage, and
(2) the principle of non-regression, which could require the government to justify their decisions when energy policy results in decarbonisation backsliding.
One of the cases that has received global attention is the Irish Supreme Court judgement of Friends of the Irish Environment v Ireland. The plaintiffs challenged the National Mitigation Plan developed under the Climate Change and Low Carbon Development Act 2015 for non-compliance with constitutional law, international law and human rights. The High Court found for the government, and on leapfrog appeal, the Supreme Court unanimously reversed the decision and quashed the Climate Plan. After the Supreme Court decision, a parliamentary process had been instituted, which led to the 2021 Climate Amendment Act. Both the High Court and Supreme Court judgments sparked critique, with the Supreme Court judgment receiving more favourable commentary owing to its decision on behalf of the plaintiffs.
In this paper, I suggest that notwithstanding the final decisions, the High Court judgement might provide more ammunition for future climate litigation, while the Supreme Court judgement narrows the scope not only of climate-related claims, but also standing of NGOs in rights-based litigation in general. Having said that, the way the Supreme Court reasoned might have been the most effective way to spur climate action in Ireland as it facilitated a constitutional collaboration among political actors. With respect to the transnational sphere of climate litigation, the contribution of the judgement is the intelligibility-specificity property of climate regulation, where such regulation should be both specific enough and clear for the citizenry to follow.
The chapter is divided into three parts:
(1) First, I elaborate on what I mean by a priority of claims of community over claims of access. To do so, I reconstruct a celebrated debate between Joseph Carens and David Miller, and show a continuity in the argumentative strategies employed in general criticisms of open borders and specific criticisms of the sale of citizenship;
(2) Second, I provide a brief account of the phenomenon of investment migration, including the sale of citizenship and residency, in order to appreciate specific criticisms of the sale of citizenship; and
(3) Third, I reconstruct recent scholarly work on investment migration, and show that a general disposition towards divining the preferences of a pre-existing national community and attributing moral weight to such preferences illuminates specific criticisms of the sale of citizenship.
At stake is not only good argumentative practice. Critical commentary on investment migration influences both public discourse and official documents. Without specific findings on how and in what form the sale of citizenship is problematic, a general indictment of the phenomenon has the expressive effect of adding to the exclusionary sentiment that is a defining feature of contemporary public life.
The way of thinking about the legacy of the Magna Carta described above has a direct bearing on the way EU citizenship progresses, and how the Magna Carta may be used to influence its trajectory. EU citienship has developed in two ways: first, it has served a mitigative role by qualifying the forms of exclusion created by national governments, including protecting the individual against the ‘will of the people’ expressed in parliamentary or executive decisions. The second has been a legitimating role, where power structures and discourses that come with the ‘touch of Stateness’ have been privileged, usually by mimicking the way national governments function. We argue that the spirit of the Mitigative Face of a destroyed Magna Carta could serve as a check on this development of the legitimating role of citizenship.