Twenty years after its publication, the Manifesto for Social Justice in Contract Law’s call to “align the general principles of social justice that govern the market order with standards designed to protect public goods such as a healthy environment” continues to resonate. The traditional definition of social justice – focused on the fair and equal distribution of resources, opportunities, and rights for all, irrespective of race, gender, socioeconomic status, or background – now increasingly encompasses the right to live in a safe, clean, and healthy environment. This is a two-way dynamic as, on the other side, it is more and more widely recognised that sustainable development cannot solely focus on clean energy or climate neutrality. A just transition must also focus on vulnerable communities and centre social justice.
Social and Environmental Justice in the European Green Deal
The European Green Deal reflects this growing understanding that social and environmental justice must go hand in hand. This comprehensive policy initiative, launched by the European Union (EU) in order to make Europe the first climate-neutral continent by 2050, aims to address the interconnected challenges of climate change, environmental degradation, and social inequality while promoting (sustainable) economic growth. In a time of crisis where the world must transition towards a sustainable future, the question of land allocation and use is critical. Land is not only a finite resource but also a central component of ecosystems, livelihoods, and social structures. Its allocation and use profoundly impact our ability to address pressing challenges such as climate change, biodiversity loss, and social inequities. The European Green Deal acknowledges this, as many of the actions, strategies and measures proposed in the framework are concerned with food security, sustainable agriculture, sustainable urban development, and the restoration of degraded ecosystems.
While these are promising objectives, much work remains to be done to ensure that no one and no place are left behind. To translate these policy goals into tangible action, transformative legal frameworks that promote both social and environmental justice within the EU and beyond are necessary. In this context, European private law can be crucial in shaping land use practices and nature conservation efforts.
From Watchdogs to Architects of Change
Private lawyers should take this issue seriously, as private law has played a significant role in, as Nicole Graham puts it, “facilitating climate change.” Many of the foundational institutions and concepts in private law – such as private property, the autonomy of individuals and parties, contract, alienability, exclusion, corporate personhood, and the prioritisation of private over collective interests – have historically enabled extractive and unsustainable practices that are closely linked to environmental degradation and social unrest. Much work is already underway to rethink how we approach, practice, and teach private law. This includes endeavours that explore ways for contract and consumer law to foster fairness, justice, equality, and democratic participation. One could also think of the budding scholarship that tasks itself with reimagining property law to emphasise its social function and transformative and progressive potential, with the goal of promoting human flourishing, the common good, and bringing the different tenets of social justice into reality.
More than ever, initiatives like the European Green Deal give the opportunity to private lawyers to advance propositions and shape law so that private law can serve broader societal goals beyond individual ownership and economic speculation by prioritising sustainability, equity, and community well-being in land-use planning and governance frameworks. This may involve measures to promote agroecology, sustainable forestry, and regenerative agriculture, as well as support for community land trusts and participatory decision-making processes that empower local stakeholders.
The Gentle Exporter
However, while there has been much talk and focus on the European Green Deal from a European insider perspective, the way the EU exports itself and its law beyond its jurisdiction should garner more attention. The EU is a major importer of natural resources. So, its consumption patterns have significant implications for land use and ecosystems beyond its frontiers. For example, 16% of global deforestation is directly linked to European imports. Consequently, there have been calls for European law to address extraterritorial environmental impacts and promote responsible business conduct throughout global supply chains. It is in this context that the European Union (EU) adopted a regulation “on the making available on the Union market and the export from the Union of certain commodities and products associated with deforestation and forest degradation” (Regulation 2023 /1115), commonly referred to as the EU Deforestation Regulation (EUDR) in May 2023. It sets mandatory due diligence rules for companies operating within the EU that import and export deforestation-related commodities, such as soy, beef, palm oil, wood, cocoa, and coffee. The regulation seeks to ensure that these products are not sourced from lands deforested or degraded after 31 December 2020, using an international definition from the Food and Agriculture Organisation (FAO).
Colonial Continuities?
While it may seem beneficial to guarantee that only deforestation-free products can enter the EU internal market, there are significant issues with the EU’s current approach to this goal. The EUDR, built on a philosophy of “European exceptionalism,” risks being a green colonialist endeavour, structured around outsourcing emissions cuts and biodiversity conservation efforts. This is exacerbated by the EUDR’s top-down and unilateral approach. The EU Commission frequently frames this type of legislation in a way that positions Europe as a global leader in environmental and forest conservation, using language that emphasises the legislation’s exceptional and pioneering character. The EUDR’s planned efficiency is construed around the market importance of the EU and the leveraging of the EU economic power to enforce environmental standards globally. The logic is that corporations will align with it to avoid the risk of losing access to this market. While this pioneering language can be seen as positive, it also implies a sense of superiority and can come across as imposing European standards and values on other countries. This can be perceived as a form of economic coercion, where developing countries must comply with European standards or risk losing access to the lucrative EU market.
The problem here is that the final version of the EUDR only concentrates on the environmental aspect and overlooks issues of consent. Smallholders, who are crucial for the production of crops like cocoa, coffee, and palm oil, may face significant financial burdens to comply with the EUDR. This can push small farmers out of the market, leading to further economic disparities. Likewise, the impact of this legislation on local and indigenous communities that depend on forests for their subsistence is not adequately addressed. Conservation measures imposed without local consent can result in displacement and significant disruptions to communities’ social and economic fabric. These measures can sometimes do more harm than good, exacerbating poverty and social tensions. This regulation risks further marginalising smallholders, local and indigenous communities.
Beyond the Fortress: The Death of Eurocentrism in European Private Law
One could ask what the link between this, European private law and social justice is. It may seem counter-intuitive, but European (private) law is not only built and developed within the European borders. The EU’s external relations with third countries have shaped Union law from the genesis. Trade and colonialism have shaped and influenced the way the free movement of goods and people is framed in EU law, and these colonial tendencies continue today. Initiatives like the European Green Deal and the EUDR can lead to positive change and create a more sustainable and resilient future within and beyond Europe. However, this must be done in a way that addresses criticisms against Eurocentrism and neocolonialism. Historically, European colonialism and exploitation of natural resources in other regions have contributed to environmental degradation and social injustices. Today, the EU’s land use and nature management policies and laws must confront this legacy and ensure that colonial-era processes of norm imposition through trade are not perpetuated. Colonial continuities and further marginalisation of vulnerable communities cannot be part of a legal framework that is concerned with social justice.
European private lawyers should contribute to the discourse on how the EU can avoid (green) colonialism in its efforts to combat deforestation and climate change. There is often much debate and scepticism surrounding the existence of a unified European private law due to the coexistence of different national contexts and legal cultures within the EU, especially in areas like property law, where national sovereignty still reigns supreme. However, this scepticism loses relevance in certain contexts where the European legal identity cannot be doubted. Externally, Europe is frequently seen as a single bloc, with its identity often shaped through a process of “otherization” – that is, through how it is perceived by non-European countries. When representatives of the European Commission speak on behalf of all 27 member states in third countries, it becomes clear that a distinct European identity, legal culture, and framework extends beyond internal divisions. It is, therefore, an oversight to focus solely on the “ people (…) and citizens of Europe,” as the Manifesto does, because European private law is significantly shaped by its interactions with non-European nations.
Furthermore, while some may argue that the EUDR belongs to the realm of public law, I contend that the traditional public/private divide is both thin and artificial in this context. Although the EUDR is regulatory in nature, its effects ripple through private actors (from traders to consumers or producers), relationships, and institutions both within and outside the EU. This makes it crucial for private lawyers to engage with such regulations, as failing to do so risks overlooking key developments that could shape a European private law framework grounded in social justice.
Conclusion
In conclusion, the key challenge for the EU, both internally and externally, is whether it can adopt a more inclusive and participatory approach that considers the diverse contexts and needs of all stakeholders, thereby creating a more equitable and effective framework. The proposition by the EU Commission to delay the implementation of the EUDR by one year in response to criticisms from NGOs, activists, trade unions, and representatives from Latin American, African, and South Asian states is a step in the right direction. This move could signal the EU’s openness to adopting a more collaborative and horizontal approach, which is essential for fostering a more collaborative and horizontal approach grounded in social and environmental justice. Nevertheless, does this imply that the EUDR will be reexamined to truly listen to and learn from the voices of those most affected by the regulation? Is the EU really prepared to embrace collaborative governance and inclusive decision-making?
Art by Tomoko Nagao
Il quarto stato with motta, campari, pirelli, armani, prada, chicco, alitalia and visa at piazza duomo
2016 Digital contents
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