Privatisation and Climate Change: a Question of Duties?

Abstract

If the state outsources a responsibility to private actors to plant trees, is that necessarily a bad thing? Surely, one would think not. Still, in constitutional theory, there are many forceful arguments against privatisation. One of the core arguments against privatisation is the question of who ought to do what and what it means for a policy area to be inherently public. In this paper, I am interested in varieties of privatisation and in particular what privatisation means in the context of climate change. The aim of the paper is to show that precisely because there is a variety of privatisation, in some areas, such as the environment and regarding climate change, we may discuss the question of ‘duty’ rather than privatisation as such.

1 Introduction

If the state outsources a responsibility to private actors to plant trees, is that necessarily a bad thing? Surely, one would think not. Still, in constitutional theory, there are many forceful arguments against privatisation.¹ One of the core arguments against privatisation is the question of who ought to do what and what it means for a policy area to be inherently public.² The standard dictionary definition of privatisation is the ‘transfer of government services or assets to the private sector, where the objective is often to increase government efficiency’.³ But does privatisation also concern the delegation of duties? For many years now, privatisation has been criticised for prioritising profit rather than quality control and for focusing on outsourcing profitable tasks. Moreover, privatisation lacks judicial oversight and accountability.⁴ Another key argument against privatisation is that only the state can (or should) fulfil certain responsibilities.⁵

Given the important arguments against privatisation, is there anything that could conceivably be good about privatisation? More specifically, does climate change offer a credible challenge to the claim that privatisation is wrong as such? Environmental pollution and the climate change emergency are important to discuss in the context of political theory and privatisation as well as in doctrinal EU law. For example, in republican theory, environmental pollution and climate change could be seen as acts of domination where individuals are dominated if they lack access to the basic goods needed for a decent life and are thereby deprived of their dignity and innate rights (clean water, clean air, etc.).⁶ Moreover, a lack of resources and starvation due to climate change will obviously render people more vulnerable to domination.⁷ Climate change is also relevant to Kantian theory, as climate change may impact the freedom of other persons.⁸ For example, Alice Pinheiro Walla has argued that climate change represents ‘a threat to the livelihoods and existence of the most vulnerable in the planet, who are then prevented from relocating due to the world’s configuration into territorial nation states’ and therefore becomes a threat to external freedom.⁹

These questions are pertinent in EU law, for example, where outsourcing is an increasingly common policy method. While the questions addressed in this paper apply generally, EU law as well as an example from Dutch case law, will be used as concrete examples, and as an interesting test case. In the case of the EU, it concerns privatisation and outsourcing ‘beyond’ the state.

While it may be difficult to clearly separate ‘reasonable’ from ‘unreasonable’, or ‘good’ from ‘bad’ in crude terms, privatisation from the consequentialist perspective is different from the non-instrumental view as it focuses on outcomes. Instead, the non-instrumental viewpoint of privatisation is that it is wrong as such since it lacks democratic anchoring. On this account, only the state can pursue certain tasks as representatives of the public. From a contemporary legal perspective, this is complex—at least in the framework of EU law, where there is a clear intermingling of vertical and horizontal duties that are interesting to explore in terms of the environment.

In this paper, I am interested in varieties of privatisation and in particular what privatisation means in the context of climate change. Specifically, the paper will discuss to what extent privatisation can be justified on the Kantian inspired account when states do not do enough to tackle the climate emergency. The paper will discuss the phenomenon of privatisation in the framework of climate change and the environment more broadly. The aim of the paper is to show that precisely because there is a variety of privatisation, in some areas, such as the environment, we may discuss the question of ‘duty’ rather than privatisation as such. By duties, I mean the responsibility of states and private actors to act in certain ways due to the emergency of climate change.

The paper is divided into two parts: one mainly focused on privatisation in EU law and one more theoretical. The first part discusses the question of privatisation as such as well as the question of climate change. Moreover, the first part looks at the notion of coercion in the specific contexts of EU climate and EU security regulation, as well as marketisation and privatisation in these areas. I will highlight the many similarities between EU security regulation and environmental laws, as both are areas that are inherently public and are often subject to emergency situations. Thereafter, the paper zooms out and discusses why, from a Kantian reading, something is deeply problematic about privatisation. Specifically, the paper discusses the arguments against privatisation and Kantian themes as to why outsourcing is considered so problematic. Next, the paper examines a recent case on the responsibility of companies to honour the Paris Agreement in the same way as they are bound by human rights. Specifically, the recent judgment in Milieudefensie et al. v. Royal Dutch Shell plc concerned the obligation of private actors to cut CO₂ emissions.¹⁰ While the case is still pending, it raises broader questions about the function of private actors in combatting climate change independent of legal particularities.¹¹ The paper concludes by addressing under what circumstances Kantian-inspired understandings of privatisation would allow for privatisation by discussing the idea of ‘hybrid privatisation’ and the question of ‘slow violence’.¹²

2 Climate Change and Responsibility: Horizontal and Vertical Duties

According to the UN, climate change refers to long-term shifts in temperature and weather patterns and is anthropogenic, i.e. man-made.¹³ The EU describes climate change as being of a shifting nature in that it can, inter alia, lead to biodiversity loss, forest fires, and higher temperatures as well as negatively affect people’s health.¹⁴ The phenomenon of climate change has also been described as taking a major human, economic, and environmental tolls in Europe, as the fastest-warming continent of the world.¹⁵

Many scholars view climate change as a form of structural injustice and argue that it requires a theory of political responsibility as well as a theory of climate ethics.¹⁶ Michael Sardo explains how according to him ‘individuals and groups bear political responsibility not because of agent-based attributes—such as causal contribution or capacity—but by participating in and benefiting from the unjust structures that perpetuate climate injustices’.¹⁷ In this view, individuals have a political obligation to act in a way that is not harmful to the environment. Moreover, Sardo elucidates how climate change’s multiple inequality originates not ‘in brute luck or geography, but in unjust global political-economic structures’.¹⁸ Thus’ there is a connection between the level of CO₂ emissions and justice where rich states are dominating less economically developed countries.¹⁹ Moreover, it could be argued that individuals bear political responsibility by participating in and benefiting from the unjust structures that lead to climate injustices.²⁰ In this regard, Simon Caney proposes that agents have the political responsibility to create just and effective institutions, and the responsibility to combat ongoing campaigns to thwart effective climate action.²¹ Caney explains how duties for individuals may include promotional ones, such as the duty to ‘engage in civil disobedience and resistance against laws that result in unjustified emissions or inadequate levels of adaptation’.²² Others like Blake Francis suggests that the duty of citizenship involves a civic responsibility to repair harms done to the victims of climate change and to do one’s part in honouring the nation’s obligations.²³

If individuals have both a political and moral obligation to do what they can to minimise harm to the environment, what duties do states have when it comes to the harm against the environment that took place before there was legislation in place? Göran Duus-Otterström has argued that states may be liable to costs associated with protecting the environment even in the absence of a legal obligation.²⁴

On a Kantian inspired view, the categorical imperative presumably entails a moral duty to attain a good environment and a sustainable future, as we owe this to other fellow citizens and future generations.²⁵ Could such a requirement also involve duties of a legal kind, and is privatisation part of this?²⁶ With regard to the arguments against privatisation perhaps it matters whether we are discussing criminal punishment,²⁷ prisons,²⁸ war,²⁹ or the protection of environment when it comes to the question as to what issues ought to be considered both horizontal (where privatisation is part of this) and vertical duties (states responsibility). A decade ago, the UN stipulated that states need to ensure that business enterprises performing services operate in a manner consistent with the state’s human rights obligations, which may entail reputational and legal consequences for the state itself.³⁰ While various private actors have influenced both international law and European law, what appears to be new is the variety of interest and their influence in achieving important outcomes.³¹ Moreover, the roles of non-state actors and environmental NGOs, federations, and foundations are increasingly important in the fight against climate change; not least in the many recent important constitutional cases such as Urgenda and the pending Aurora case concerning states’ obligations to deliver on the Paris Agreement.³²

Indeed, the Paris Agreement has been dubbed a landmark in the multilateral climate change process because, for the first time, a binding agreement brings all nations together to combat climate change and adapt to its effects.³³ While the Paris Agreement is addressed to states, there have been several voluntary measures taken by businesses and endorsed by the UN that aim to contribute to greening the environment.³⁴ Moreover, the Paris Agreement has been described as extending an open invitation to all public and private actors to contribute to climate change mitigation and adaptation.³⁵ Public and private are blurred in the transnational policies to tackle climate change.³⁶

The rights to clean air and clean water are human rights that are necessary for an ecosystem and vital for human life. Human rights are centred on individual rights, while environmental protection is centred on common global goods and the rights of the collective. Some scholars have suggested a turn to the all-affected principle—according to this view, all individuals who are affected are members of the demos and therefore ought to fall within the same jurisdiction.³⁷ Thus, the all-affected principle has a well-known problem in the sense that it is potentially over-inclusive and similar to the idea of universal jurisdiction, i.e. the idea that jurisdiction transcends territorial borders. The collective action aspect of climate change is a theme that may be seen as something that is inherently coupled to the state’s responsibility to people as a matter of justice. Moreover, it has been suggested that the ‘all-affected principle implies that some kind of cosmopolitan constitutional structure should be the long-term goal of transnational institutional reform’.³⁸ The questions about the boundaries of the ‘all affected’ and democratic aspect are perhaps analogous in their queries about privatisation, namely, accountability and the democratic question of inclusion.³⁹

In the following, I will briefly go through some of the main questions that are raised in the context of privatisation, how the EU deals with questions of privatisation, coercion, and marketisation and what the implications are in the context of climate change. The reason as to why the paper will look at marketisation and the question of coercion is because these issues are commonly discussed in the scholarship on privatisation.⁴⁰ As will be shown below, however, they are not the only questions that need to be considered when we discuss the question of privatisation. But first of all, why is privatisation a question for the EU and why does it matter in the context of the environment and climate change?

2.1 The EU Context: Privatisation and Marketisation

The EU has wide-ranging competence in environmental matters (e.g. Article 191 Treaty of the Functioning of the European Union). The EU embraces the precautionary principle (that actions should be taken before it is too late), and the polluter should pay a principle toward achieving a healthy environment. The best example of the latter is the widespread emission trading scheme on CO₂ allowances, where the EU has had a Directive in place since 2003.⁴¹ The polluter pays a principle that stipulates that polluters shall compensate society for the cost that they cause, such as environmental taxes and other economic instruments. Caney has argued that one problem with the ‘Polluter Pays Principle’ is that it cannot cope with the effects on the climate that result from the emissions of earlier generations which affects future generations.⁴² EU law partly responds to this problem: it is largely based on the notion of a risk-based approach (precautionary principle) where prevention is the key theme to tackling the climate crisis in the near future, and the sustainability principle in EU law has been taken to mean taking into consideration future generations.⁴³ Moreover, in EU law, the finance sector is increasingly seen as vital for accelerating the transition to sustainability and climate neutrality, and this includes privatisation by tasking private companies with green duties. One reason is the need to mobilise large amounts of private capital to meet the investment needs for achieving the climate targets of the Paris Agreement and the UN Sustainable Development Goals.⁴⁴ While the problem of the dead polluter who cannot pay anymore is problematic from the perspective of ethics and political duties to the current generation and the unborn, the EU framework is more future-oriented as it resorts to precautionary, or risk, principles. And as part of this strategy, privatisation plays an important part, as the EU has coupled finance and private parties together as a means of tackling climate change through partial privatisation. Nevertheless, it could of course be argued that the EU should have a more sophisticated and worked through agenda as to how to tackle the problem with the dead polluter as well as the question as how to deal with pollution in the future.

The EU often outsources responsibility to protect the environment to companies that favour green investments and where businesses are asked to monitor their compliance and are tasked with extensive powers in this regard. For example, the EU sustainable finance system has a key role to play in delivering on the policy objectives outlined under the European green deal as well as in the EU’s international commitments on climate and sustainability objectives.⁴⁵ It means that obligations are put on the private sector.

As mentioned, there is a clear financial aspect when it comes to outsourcing. Especially policy initiatives such as the EU Sustainable Finance Agenda makes it clear that one of the EU strategies is to make green investments profitable for companies in order to create greater incentives.⁴⁶ According to the Commission the financial sector has a key role to play in reaching those goals. The Commission states that it requires solidarity between its Member States and its citizens to achieve these goals. One of the EU’s recent policies is the European Green Deal, which has been described as a ‘solidary measure between generations, Member States, regions, rural and urban areas, and different parts of society’.⁴⁷ Another recent EU policy in the area is the EU sustainable finance agenda, where environmental considerations might include ‘climate change mitigation and adaptation, as well as the environment more broadly’.⁴⁸

Moreover, the EU recently published a sustainable finance package which ensures that the EU sustainable finance framework continues to support companies and the financial sector, while encouraging the private funding of transition projects and technologies.⁴⁹ Instruments like the Capital Markets Union Action Plan, the EU 2050 long-term climate strategy, and the Commission Action Plan on financing sustainable growth are examples of the efforts put up by the European institutions by involving investors in the efforts of achieving a greener environment.⁵⁰ Many of these measures are based primarily on the EU market provision (Article 114 TFEU) and not on the environmental provision (Article 191 TFEU). Central to the EU market provision is that of market creation, boosting confidence in the market and that of an instrumental need to establish the internal market as such which may involve various things, from protecting the environment to fighting money laundering and combatting terrorist financing. The point here is that the EU framework is very integrated and there is extensive overlap between different policies, many of which involve privatisation. For example, in the fight against money laundering and terrorism financing, banks and lawyers have for a long time been required to report suspicious transactions.⁵¹ Likewise in the area of trafficking of human beings, EU Member States should make sure that landlords and employers are under an obligation to report suspected trafficking activity.⁵² Moreover, the duty to protect the environment is reflected in the EU’s values as it appears as if duties to protect the environment are part of the rule of law criteria and part of the EU mission to promote values in Article 2 TEU.

2.2 Marketisation, Privatisation, and Coercion

As indicated above, the marketisation theme is a prominent question in privatisation. Talia Fisher has explained that privatisation often takes the form of market-oriented privatisation model, which endorses a consent-based type of normativity.⁵³ Fisher points out that such a market-based legal regime would, therefore, be reducible to the law of contracts, where one’s basic rights are the result of others’ contractual consent. In recent years there has been a massive outsourcing of responsibilities to private companies as key players in regulation both at the EU level and globally.

Certainly, marketisation appears to be a key theme in the debate on privatisation, especially in EU law. Deborah Avant has coined the expression of ‘a market of force’.⁵⁴ Avant argued that there is always a loss of control associated with any delegation and outsourcing of coercive measures and force and that it blurs the public and private distinction. Indeed, private companies have broadened the idea of security, challenging who or what should be secured, and shifting our understanding of ‘public’.⁵⁵ What are the broader consequences of outsourcing and privatisation in the field of EU law? It is currently very unclear how due process rights can be upheld when public questions are outsourced to private actors. Still, private actors are ‘everywhere’ in modern day regulatory framework of security regulation. Although these are different challenges from those of climate change and the environment, the similarity with security regulation is that they both constitute emergencies, and the question of coercion is relevant when it comes to privatisation in both areas. Coercion is often understood as an attempt to influence someone’s behaviour through the threat of sanctions. Privatisation in this regard is often considered wrong as it curtails citizens’ freedom and count as unilateral imposition of power and coercion.⁵⁶ While coercion may involve the imposition of sanctions, force seems slightly different in that actors subjected to force are compelled through physical power. The concept of coercion is therefore interesting in the context of the rule of law and the framing of the EU values and safeguarding human rights and when it comes to the role of private actors.

It is interesting to turn to security regulation in further detail. This is because EU security regulation seems, paradoxically, to have a lot to do with market law and prevention as well as with questions regarding how to tackle emergencies through privatisation and outsourcing of responsibilities (counter terrorism, cyber-crime, managing of borders, etc.). The complex legal framework of the internal market and its strong emphasis on market confidence is important when analysing privatisation and needs to be understood in the context of the EU’s broader economic agenda, which is then translated to the EU ‘Area of Freedom, Security and Justice’ (Article 67 TFEU), where the EU is largely focusing on security measures. Yet, market efficiency may be problematic in the area of security regulation, as human rights are at stake.

In recent years, there has been a frequent outsourcing to private companies as key players in security regulation at both the EU level and globally. Private companies like X (formerly Twitter), Facebook, and Google, as well as airlines and banks, are required to monitor suspicious activities.⁵⁷ How can arbitrariness be avoided to secure the free and equal position of individuals when coercive measures are at stake and private actors are the unofficial policemen?⁵⁸ More specifically, what is the relationship between private actors and coercion? Private actors are vested with coercive measures and powers that are traditionally the domain of the state and the democratically elected legislature. When private actors are empowered to exercise relevant political power in their own name, rather than in the name of the political community to which that power ultimately belongs, there is a legitimacy deficit.⁵⁹

Moreover, the extension of public norms to private actors poses a challenge for representation.⁶⁰ The justification for the state’s power rests on its ability to act impartially in the name of all. If it fails to do so, as argued by both Alon Harel and Malcolm Thorburn, then it undermines its own legitimacy. To what extent is this a debate on the legitimacy of private actors, which is even more complex at the EU level as compared to the nation state? While there is a wide-ranging literature on post national law and the idea of democracy beyond the nation state, much less is said about this debate in relation to private actors and democratic theory.⁶¹ Likewise, contemporary political theorists and legal theorists almost exclusively discuss the nation state.⁶² When powers are outsourced, both the accountability and the democratic dimension are challenged. As mentioned, this gives rise to a question as to how legitimacy can be secured in these matters. An official acting in the name of the state can be held liable for breach of the right to remedy.⁶³ In the EU context, it is often unclear who the actual legislator is, as agencies and private actors are vested with quasi-legislative powers. Key features of due process may therefore be endangered, as it is often not clear how an individual could be guaranteed the right to judicial review. In any case, regarding private actors, it is currently very unclear how due process rights can be upheld when public questions are outsourced to the private.⁶⁴

Arguably the standard marketisation critique, as briefly discussed above, that privatisation is about making profit. Furthermore, the critique consists of a valid concern about limited judicial control and lack of accountability. Yet, it could be argued that such concerns are not enough to understand the arguments against privatisation in the context of climate change. Therefore, it is interesting to turn to Kantian theory and the non-instrumental arguments against privatisation.

3 Non-instrumental Arguments Against Privatisation: Harel, Dorfman, and Cordelli

The argument against privatisation as such is largely a Kantian one. Specifically, the arguments against privatisation are often contingent on a non-instrumental viewpoint which is essentially Kantian and linked to the concept of freedom-as-independence. According to Chiara Cordelli, for example, the problem with ‘privatisation is that private actors conceptually fail to provide goods that government ought to secure and the nature of which is intrinsically public’.⁶⁵ In this view, the wrongs of privatisation lie in the connection between freedom-as-independence and acquired rights, and only the state can provide such rights.⁶⁶ Specifically, Cordelli argues that under privatised systems, private actors unavoidably make decisions that change the normative situation of citizens, and that even if ‘private actors are publicly authorised through government contracts to make these decisions, and even if they exercise rightful judgment, their decisions fail to meet the condition of unity’.⁶⁷ Similarly, Alon Harel has argued that the debate on privatisation should be focused on who ought to perform the duties and not who succeeds.⁶⁸ This is the non-instrumental argument against privatisation.⁶⁹

What are the defining criteria for something to be public? This seems to be a somewhat fluid question albeit very interesting. Interestingly, Harel claims that there is a non-instrumental right to have the state decide on public matters.⁷⁰ For Harel, the insistence on a constitutional structure guaranteeing judicial review constitutes public recognition that the protection of rights is the state’s duty rather than a mere discretionary gesture on its part.⁷¹ Furthermore, Harel and Avihay Dorfman have argued that some governmental decisions simply cannot be successfully executed by private entities, since the goods resulting from these decisions—what they call inherently public goods—can be realised only if the state performs these tasks.⁷² According to them, there is no leeway available for the state in cases involving inherently public goods. Public officials can speak and act in the name of the omnilateral will of the state insofar as they act for the public purposes defined by the relevant legal mandates.⁷³ Harel and Dorfman, however, show that from a Kantian accounting, in essence, anyone can satisfy the threshold requirement to refrain from pursuing private purposes while enforcing the law. Therefore, they argue that only public officials, in general, ought to pursue public purpose because of the democratic dimension that they ought to speak in the name of the people. Harel goes further and equates privatisation with domination as people are stripped of their dignity (in the case of prisons) and because there is an accountability deficit.⁷⁴

In addition, Cordelli has forcefully argued that in Kantian theory, privatisation amounts to the state of nature as it is action taken outside the framework of proper legal authority.⁷⁵ Specifically, she claims that the creation of an institutional arrangement that resorts to private actors as decision-makers, by its very constitution, denies those who are subject to equal freedom to exercise their rights. Cordelli, who is inspired by Arthur Ripstein’s reading of Kant’s ‘The Doctrine of Right’, argues that ‘privatisation reproduces, within a civil condition, the very same problem that Kant attributes to the state of nature, thereby making a rightful condition of reciprocal independence impossible’.⁷⁶ Therefore, she argues that we have a duty to constitutionally limit privatisation.⁷⁷ This is so even if the privatised function does not directly entail the exercise of force (as it is the case in the context of prisons, military defence, and policing) and even if private actors are disposed to act rightfully.⁷⁸ In short, the state should provide public goods, not private entities. For Cordelli, citizens are governed by the omnilateral rule of the state rather than the unilateral will of an individual; they are in a state of freedom in the former and a condition of ‘un-freedom’ in the latter.⁷⁹ In sum, from a Kantian viewpoint, outsourcing law-making powers, either through legislation or case law, to private entities is not permissible because, and insofar as, it brings about a state of unilateral subjection: subjection of one person to the will of another. Consequently, and to repeat, from a non-instrumental stance, privatisation is wrong as it deprives citizens of democratic creditability of the law and because the right to judicial review may be endangered.

3.1 Kant and the Climate Crisis: Pinheiro Walla and Ripstein

While privatisation seems deeply problematic from a Kantian view, in the framework of climate change, it is needed to discuss privatisation as a question of whether private actors live up to their duties due to the emergency of climate crisis. In Kantian theory, climate change and pollution are dangerous as they threaten the notion of peace, freedom, and the idea of non-interference. No one can be free if they have no safe environment. Climate emergency then, to use the Kantian vocabulary, is in some respects like a state of nature. Is there something about the emergency of climate change that makes it a good candidate for privatisation?

For Kant, there is a requirement that everything is brought under law. Law is central to the idea of a rightful condition. Arthur Ripstein reminds us that the law cannot confer on any person or group of persons the power to use force outside the law. Moreover, Ripstein argues that a condition of peace must be established because it is a condition of public right, which is necessarily institutional.⁸⁰ In Kantian theory, the notion of freedom (independence of being constrained by another’s choice) is an innate right insofar as it can coexist with the freedom of every other in accordance with a universal law.⁸¹ For obvious reasons freedom is disturbed if there is a man-made climate crisis or a war.

Pinheiro Walla has explained it that climate change raises the question of what kinds of duties we can impose on others externally that are not mere moral duties but are enforceable in practice.⁸² Pinheiro Walla points out that private individuals lack the authority to coerce. For this, we need political representation and public institutions. She emphasises the duty to leave the state of nature and that states are exceptionally authorised to coerce others for that purpose. Hence, instead of turning to privatisation, for Pinheiro Walla, the question of territory becomes the relevant philosophical debate on climate change. Specifically, she argues that we must rely on individuals to put pressure on their national governments and call for their implementation. Yet, according to Pinheiro Walla, this means that we are still addressing rights violations as matters of individual virtue.⁸³

In this context, Ripstein’s work on the law of war and Kant is interesting, as war, just like climate change, involves the question of emergency and arguably also that of self-defence.⁸⁴ In just war theory as well as in Kantian theory, the only justification for using force is self-defence, which is permitted.⁸⁵ Ripstein argues that the Kantian response to war is to insist that the point of the rules of war is not to create a level playing field or to ensure that those with a just cause always win. It is instead to protect the peace. Yet, the interesting question is perhaps this: if from a Kantian stance, peace cannot be secured because of climate emergency, and if states are not doing enough, is privatisation then permissible? As mentioned above, emergency and risk regulation are central themes in EU environmental policies as well as in the EU’s approach to security and counterterrorism which, it could be argued, often have war-like features. For Kant, self-defence alone would constitute a legitimate cause for war, so perhaps as part of the imminence of climate change, also a Kantian would allow partial privatisation.

According to Kant, the ‘original contract’ is an idea that forces the sovereign to ‘give his laws in such a way that they could have arisen from the united will of a whole people and to regard each subject, insofar as he wants to be a citizen, as if he has joined in voting for such a will’ (Doctrine of Right (6:315–16).⁸⁶ As Ripstein emphasises ‘The sole purpose for which the state is supposed to act—the idea of the original contract—is the provision of a rightful condition for its inhabitants’.⁸⁷ Moreover, he argues that in its constitutive use, the idea of an original contract sets the conditions for identifying something as a state at all; in its regulative use, it provides the norm against which existing states are to be assessed. Ripstein argues that the distinctively legal task is to determine ‘who gets to answer a particular question’.⁸⁸

From a strictly Kantian interpretation, privatisation is deeply problematic because it concerns who ought to decide. Yet, it may be a necessity to counter harm and ensure peace, which are also Kantian ideals, even if it is not a long-term solution, whereas for Kant, privatisation is highly problematic,⁸⁹ peace is central to the rightful condition, and law is quintessential in this process.⁹⁰

Accordingly and what is interesting in the context of law is the extant that privatisation in the framework of climate change could still be considered a necessity and ultimately that of a duty. In other words, instead of privatisation, the question of duties may become the crucial question.

This paper will now turn to doctrinal law and the recent case Milieudefensie v. Royal Dutch Shell case (hereafter, the ‘Shell case’) which addresses the privatisation of climate law obligations.⁹¹ Previously, the Dutch Courts had already ruled in the Urgenda ruling that states were failing to realise their climate law duties,⁹² but the Shell case is interesting, as it concerns the duties of private actors. In the Urgenda ruling, the Dutch court had stated that the Netherlands did not do enough to meet its climate goals to which it had agreed by signing the Paris Agreement through countering dangerous climate change due to CO₂ emissions.⁹³

4 The Shell Case—a Question of Duties

Companies must respect human rights. Indeed, this was the starting point for the reasoning of the Dutch District Court in the recent Shell case. The Dutch District Court held that such an obligation also includes respecting the environment and positively honouring the Paris Agreement and contributing to a healthy environment. The law as interpreted here goes further than a ban on environmental pollution or the use of coercive measures to correct such pollution. Specifically, the recent Shell case mentioned above is interesting for several reasons, as it insists on the legal duty of companies to actively contribute to realising the Paris Agreement.⁹⁴ In the Shell case, the Dutch District Court ruled that Shell has a duty of care toward the people living in the Netherlands, and this duty means that they have to actively contribute to fighting climate change by reducing the carbon dioxide emissions resulting from its global operations by at least 45% by 2030, compared to 2019.⁹⁵ The case confirms that companies are under obligation to advance the Paris Agreement and to undertake duties to help greening the atmosphere. It concerns a delegation of duties to private parties in these matters.⁹⁶ The legal reasoning was based on the unwritten duty of care in Dutch tort law, where Shell has an ‘obligation of result’ to reduce CO₂ emissions resulting from the Shell group’s activities, which led to an obligation to take necessary steps to remove serious risks and limit any lasting consequences to the best of its abilities.

Under the Dutch Civil Code, the duty of care is central and has to be interpreted in light of ‘what according to unwritten law has to be regarded as proper social conduct’ to be interpreted in the light of ‘all circumstances of the case.⁹⁷ Moreover, the court referred to the Treaty protection of the rights to life and to private and family life.⁹⁸ The court based their reasoning on an unwritten duty of care in Dutch tort law, where Shell has an ‘obligation of result’ to reduce CO₂ emissions resulting from the Shell group’s activities, and a ‘best-efforts obligation’ to reduce emissions generated by its business relations, including suppliers’ and end-users’ obligations to take necessary steps to remove serious risks and limit any lasting consequences to the best of its abilities. The court pointed out that international human rights law lays down obligations which States are bound to respect, and there are several policy documents extending such a duty to companies.⁹⁹ The court stated that since the UN guiding principles state that human rights should also be respected by companies, it is logical to argue that they should respect the environment. The court held that ‘it is a global standard of expected conduct for all businesses wherever they operate’. Moreover, the court held that it based its reasoning on ‘the best available science on dangerous climate change and how to manage it, and the widespread international consensus that human rights offer protection against the impacts of dangerous climate change and that companies must respect human rights’.¹⁰⁰

Moreover, the court held that the responsibility of business enterprises to respect human rights is a global standard.¹⁰¹ The law as understood by the court goes further than a ban on environmental pollution. Specifically, the court held that a duty exists independently of States’ abilities and willingness to fulfil their own human rights obligations. For this reason, the court ruled that it is not sufficient for companies to monitor the measures States take; they have an individual responsibility. In essence, the court rules that Shell is obliged to contribute to a better environment. While the idea that companies need to respect human rights is not a new phenomenon, it is a new reading by courts that this also entails positively respecting the Paris Agreement. It could be argued that this is not strictly about outsourcing, but rather about privatisation as a question of duty, and that such a duty extends to many various actors.

EU law and ECHR have for a long time recognised (albeit debated) horizontal duties, but it has so far concerned human rights.¹⁰² A decade ago, the UN stipulated that states need to ensure that business enterprises performing services operate in a manner consistent with the State’s human rights obligations, which may entail both reputational and legal consequences for the state itself.¹⁰³ Moreover, a recent UN policy document states that businesses should also take steps to implement fair and just policies and programmes to address the adverse effects of climate change, in solidarity with those affected, including highly affected regions and future generations.¹⁰⁴

5 Broader Questions: Slow Violence, Hybrid Privatisation, and Duties

Whereas privatisation might lead to less accountability and judicial oversight momentarily, perhaps this is a price worth paying in the area of climate policies, while it remains much more problematic in prisons and criminal law. Of course, as Deborah Satz points out, there is a risk of corruption in all areas especially where there is a lack of transparency such as in the case of privatisation, and therefore, she argues that corruption is more prevalent in the area of privatisation.¹⁰⁵ This may be true, but surely, there is sometimes corruption in state-run offices as well, so it seems as if the discussion here is about an ideal state versus an unideal private actor. This may not sufficiently answer the need for a holistic response to the climate crisis.

Thus, a main question for us is the meaning of coercion: it could be argued that not outsourcing responsibility to the private sectors—jointly with states—while still requiring states to do as much as they can, would deprive people their freedom. Sara de Vido discusses the notion of slow violence and how the risks of climate change have the character of violence in the form of slowly killing the planet.¹⁰⁶ Self-defence here may be needed in cases where the violence is not imminent. Surely, it could be argued that by not outsourcing or requiring private companies to proactively protect the environment just as they are required to protect human rights, the state fails in its responsibility. This is not only a Kantian argument but also brings us back to Locke. But unlike Kant, Locke defended the right to revolution if natural rights are not respected.¹⁰⁷ It is perhaps less clear what Kant said about emergencies.

In the Shell case discussed above, the Dutch court concluded that Shell has an obligation that is inside the framework of law. The obligation as manifested in case law is an extension of Treaty obligations such as the Paris Agreement. Yet, interestingly, according to Cordelli, it is irrelevant whether the privatisation in question is enacted through a legal act. She nonetheless argues that privatisation and outsourcing is still wrong, regardless of whether the privatisation in question is made by law. She compares the degree of privatisation to that of emissions and argues that if there is a tiny bit of pollution because you have to use your car that does not make you morally liable, but there is a limit to how much you can pollute. But the interesting question is who decides this limit and when there is reason to allow the limit and if this can be done by private actors. While Kant is concerned with individual freedom of action, the question seems to turn on the issue of duties for private parties.

The question of necessity becomes important here. It might be useful to compare the question of privatisation in environmental matters with the question of emergency and cosmopolitan war, as advocated by Cecile Fabre.¹⁰⁸ While the idea of war was briefly discussed above in the context of Kant, Fabre extends the right to fight wars (under certain circumstances) to individuals who are starving or forced to leave due to climate emergencies, erasing the non-instrumental and instrumental cause. For Fabre, the justification for war is the protection of human rights against violations by others. Specifically, Fabre claims that individuals generally have ‘meta-rights’ to protect their rights.¹⁰⁹ She also speaks of hybrid forms of privatisation and how their legitimacy may vary depending on the concrete situation; e.g. failed states cannot have the only legitimate authority to wage a war.¹¹⁰ Likewise, if states are not effective in fighting climate change, is it necessarily wrong to task private parties to take on this responsibility? Or perhaps we are not talking about outsourcing here but a system where private actors are taking over the state’s duty.

While forced migration and droughts due to climate emergencies or war are a threat to peace, the question of privatisation and legitimate authority becomes a question of peace and rights. But while Fabre speaks of rights, this paper speaks of duties. In order to secure freedom as independence, or relatedly freedom as non-domination, privatisation may be warranted in certain circumstances, when it is authorised by law, concerns the duty to protect the planet, and where it is the best possible outcome. Admittedly, this may be more of a republican argument than orthodox Kantian.

6 Conclusion

Certain public goods such as the environment and climate emergencies entail both private and public duties. The non-instrumental value of the environment depends on the possibility of saving the ecological system. Therefore, separating the non-instrumental value from instrumental concerns regardless of the situation in question seems unreasonable at best, even from a Kantian view. Intrinsic arguments against privatisation claim that some goods can only be provided by the state and that public provision requires frontline agents to be connected to and controlled by a public agent.¹¹¹ Central here are the reasons for which agents act and the assumption that only the state can act from on behalf of the public. That is, the intrinsic argument against privatisation relies on from the state’s exclusive competence to ascertain and act according to public reason.¹¹²

In this paper, I have questioned if all areas are to be treated the same. I have pointed at the many similarities between security regulation, war, and environmental laws as areas that are inherently public and often subject to emergency situations. While security matters are contingent on the public authority account even if there is increasing outsourcing in these matters, climate change—while also in need of democratic anchoring—stands out perhaps in the same way as self-defence is allowed for individuals—even if only the state has the authority to use violence. Of course, the difference here is between questions that are rights (such as self-defence) and the duty to perform an act. Moreover, I have questioned the strong focus on various forms of marketisation in the context of privatisation matters and argued that it is interesting the broaden the question and examine both duties and emergencies.

Intrinsic arguments against privatisation claim that some goods can only be provided by the state and that public provision requires frontline agents to be connected to and controlled by a public agent. Why does it matter who performs the duties? Central here are the reasons why agents act and the assumption that only the state can act from the public point of view. That is, the intrinsic argument against privatisation relies on the state’s exclusive competence to ascertain and act from public reason.¹¹³ But public reason embodies the principle of legitimacy for reaching political decisions and is connected to substantive principles of justice.¹¹⁴ In this sense, public reason ought to be adaptable to the living reality in order to be fully democratic.¹¹⁵ Thus, the question of privatisation and legitimate authority becomes a question of duties and how to tackle emergencies when states fail to act. In conclusion, certain public goods—such as the environment, threatened by climate emergencies—are both private and public. Therefore, the non-instrumental value of the environment depends on the instrumental possibility of saving the ecological system and a hybridity of regulation (both vertical and horizontal) is needed.