Chapter 2 demonstrates how the 2001 Patriot Act is necropolitical. As legislation, the Patriot Act takes on the authorizing, legitimizing resonances of the state. Debated and passed through Congress and the Senate, the Act emerges from processes of domestic legislation to enact this law’s global reach, in part through UN Security Council Resolutions. Additionally, the opening lines of the Patriot Act legislate necropolitical law’s planetary jurisdiction: the Act’s purpose is “[t]o deter and punish terrorist acts in the United States and around the world.” Necropolitical law’s dynamics of deception are immediately apparent in the naming of the Patriot Act, a naming that imports spectacle, the closures of meanings for “patriot” in war contexts, as well as the compound meanings of patriot as a peculiarly American keyword. The Patriot Act shows how legal illegibility is part of necropolitical law’s deception, operating through law as publicity to undo law as public thing. In 2022, we find ourselves in legal landscapes still conditioned by the Act. Chapter 2 traces the Patriot Act’s role in normalizing and consolidating necropolitical law’s planetary jurisdiction for the discounting of life in the unending long War on Terror.

Climate change is the existential crisis of our lifetime, requiring immediate action to limit global warming to 1.5˚C. Countries have committed, through the Paris Agreement, to take measures to curb greenhouse gas emissions. Yet, fossil fuel suppliers around the world continue to bet against the Paris Agreement by further expanding fossil fuels exploration, extraction, and production, which exacerbates the climate crisis and impedes meaningful action to safeguard human rights. As fossil fuel suppliers continue to profit from the climate crisis, they have consistently evaded accountability for climate change by leaning on domestic climate mitigation policies void of supply-side measures and hiding behind a wall of impunity. This chapter examines how climate litigation is closing this supply-side accountability gap through the judiciary, using the Norwegian climate case People v. Arctic Oil as an example. Although a loss for the co-plaintiffs, the Norwegian decision is, in some respects, a step in the right direction and a warning to the fossil fuel industry. This is because, for the first time, the Supreme Court held that greenhouse gas emissions from Norwegian fossil fuel products that are combusted abroad (“exported emissions”) must be considered when analyzing the climate impacts of fossil fuel extraction and production.

Chapter 1 applies Mbembe’s concept of necropolitics to define necropolitical law as the norms, practices, and relations of enmity that justify and legitimize discounting life through killing, as well as through the diminishing of socially and politically empowered life. Mapping the co-constitutions of racialized discounted lives within the domestic terrain of the United States, as well as in global sites of the long War on Terror, the chapter’s provocation is that law – notions of authority, legitimacy, and community – is at work in effecting the nationally and globally discounted lives of the long War on Terror. Chapter 1 also supplies the contours for the book’s methodology and epistemology: law as culture; an interpretive sociolegal reading for law attentive to law’s archive and law’s violence; a normative commitment to rule of law’s scrutiny and restraint of power; and a suspicion of the roles of spectacle, affect, and publicity in displacing rule-of-law’s commitments to power’s accountability and to law as public thing.

This chapter explores how the climate litigation community could contribute to progress on climate change by creatively deploying visual evidence to help secure courtroom decisions that manifest in landmark change. The chapter first examines how visuals in the court room make the unobservable and the unimaginable understandable and can transform public opinion. The chapter then looks at several environmental and human rights cases in which the plaintiffs made use of visual evidence to their advantage. The chapter concludes with a discussion of the strategic value of visuals in rights-based climate cases.

Chapter 7 concludes this book with an analysis of two key speeches delivered by President Biden on the US withdrawal from Afghanistan. Biden’s speeches served, yet again, to co-constitute nation/empire, the familial and the political, deploying these co-constitutions to authorize and legitimize American imperial violence. In the process, Biden re-articulated to necropolitical law, relying on political myth to ground his narratives of authority, legitimacy, and community. With myth doing the work of law, imperial violence directed at distant, racialized Others reconstituted America as a community of power

Chapter 6 analyzes the April 2017 deployment in Afghanistan of the US military’s most powerful nonnuclear weapon, the Massive Air Ordinance Blast (MOAB). The bombing, the secrecy surrounding it, and the shock-and-awe media celebrations in the aftermath are all part of the cultivation of global audiences as spectator-consumers fascinated with the annihilatory killing technologies unleased by contemporary US militarized imperialism, which fuel necropolitical law’s discounting of life. Necropolitically, the MOAB strike illustrates “innovations in the technology of murder … [that] aim at disposing of a large number of victims in a relatively short span of time” (Mbembe 2003: 19).

Chapter 3 analyzes President Obama’s announcement on the killing of bin Laden to reveal the way discounting life is authorized and legitimized through extrajudicial, extraterritorial killing. Specifically, Obama’s celebratory narrative of the killing as a nation-healing, nation-securing achievement codes vengeance as “justice,” normalizes US imperialism, implicitly justifies “collateral damage,” and remakes the parameters of legitimate state conduct in relation to terrorism. Attending to how Obama’s announcement used image, narrative, political myth, and sound to manufacture necropolitical law’s authority, legitimacy, norms, and community, Chapter 3 argues that we are interpellated by the official announcement, not as liberal legality’s empowered citizenry but as docile spectator-subjects. Chapter 3 also shows how the announcement, in avoiding the category “law,” enables a lawyer-president-commander-in-chief to invest the category “justice” with a range of meanings that contradict liberal legality, in that they invite us, as subjects, to acquiesce in state secrecy and in necropolitical law’s extraterritorial, extrajudicial violence.

A confluence of crises, including the COVID-19 pandemic, is exacerbating inequalities in many countries around the world, leaving Africans particularly vulnerable to hunger, unemployment, and worsening poverty. The climate emergency reinforces these inequalities and vulnerabilities. Globally, the need for an environmental rights-based approach to sustainable development, founded on principles of equity, has received increasing attention. In Africa specifically, more work needs to be done to integrate rights into environmental and climate frameworks and support communities in protecting their territories and stopping violations. Climate cases, supported by international human rights frameworks, have increasingly asserted environmental rights, in response to the need for intergenerational justice and to protect communities from the threats of climate change. Three court cases from Kenya and South Africa, Save Lamu, Earthlife Africa, and PHA Food and Farming Campaign, all driven by grassroots campaigns, illustrate how climate change concerns have been successfully brought before the courts and how these judgments set a hopeful precedent for other communities.

This chapter presents the results of a comprehensive study of the universe of rights-based climate cases filed in domestic courts and in regional and international judicial and quasi-judicial bodies between 2015 and 2021. Part I offers an overview of human rights-based climate change (HRCC) litigation. Part II analyzes the legal rules and principles emerging from HRCC lawsuits and court decisions around the world. Part III offers conclusions about the potential and limitations of HRCC litigation in advancing climate action.The chapter argues that the regulatory logic and the strategy of HRCC litigation should be examined at the intersection of international and domestic governance. Litigants have predominantly followed a two-pronged strategy. They have (1) asked courts to take the goals of the climate regime (as set out in the Paris Agreement and IPCC reports) as benchmarks to assess governments’ policies and (2) invoked the norms and enforcement mechanisms of human rights to hold governments accountable for such goals. In the face of governments’ reluctance in taking the urgent measures that are needed to address the climate emergency, HRCC litigation can be fruitfully viewed as a bottom-up mechanism that provides domestic traction for the international legal and scientific consensus on climate action.

This chapter examines the advantages and the hazards of the current approach to environmental public interest litigation, including climate litigation, in Pakistan. It begins with a look at the history of environmental litigation in Pakistan. Building upon that, the chapter continues with an analysis of climate change litigation specifically and how it relates to broader judicial trends. The chapter concludes by underscoring the limitations of climate public interest litigation in Pakistan, despite some high-profile wins.

To comply with its human rights obligations, how much does an individual state have to do reduce greenhouse gas emissions within its jurisdiction and by when? And what are the criteria by which a tribunal can objectively assess the adequacy of a state’s efforts to reduce emissions? This chapter proposes five tests, building on the practice of the UN Committee on Economic, Social and Cultural Rights (CESCR), for such an assessment. First, has every feasible human rights-consistent step been taken by the state to reduce emissions? Second, is the state subsidizing emissions, disproportionately allocating resources to spending that does not benefit the public, or failing to take adequate steps to mobilize resources towards emissions reduction? Third, is the climate plan reasonably ambitious in comparison to peer states at comparable levels of development? Fourth, has there been a progressive increase in ambition and avoidance of any retrogression? Fifth, are the state’s plans to reduce emissions in line with limiting the global temperature increase to 1.5°C? A sixth test addresses the “how” question, rather than “how much or how fast”: is the manner in which emissions are being limited consistent with human rights standards?

This chapter explores the potential of climate cases to drive climate transformation. Since the first climate cases were filed in the early 1990s, jurisprudence has shifted from rejecting the claims for lack of standing and for speculative harms to issuing findings in favor of petitioners and using IPCC reports as legal proof. We find that in most of these cases, courts do not hand down spectacular, precedent-breaking decisions or treat climate change as an exceptional legal problem. Instead, they tend to engage in low-profile climate jurisprudence, adapting existing legal frameworks to make them workable for climate-related issues. Elaborating on MacKinnon’s Butterfly Politics, we argue that advancing low-profile cases in a coordinated manner could create an atmospheric “butterfly effect.” In the past decade, low-profile, “butterfly climate jurisprudence” has nudged governments into making better informed decisions on issues such as fuel efficiency standards, the licensing of extractive projects, airport expansions, urban developments along coastlines, and incentives for renewable energy projects. The normalization or routinization of climate adjudication broadens its reach and impact and is less prone to backlash and vulnerabilities than more spectacular cases. As a result, their potential should be further studied and tested.