Victimization Devices: Exploring Challenges Facing Litigation-Based Transnational Environmental Justice
| DOI | 10.1177/0964663919841121 |
| Author | Patricio Flores,Linda Soneryd,Sebastián Ureta |
| Published date | 01 April 2020 |
| Date | 01 April 2020 |
| Subject Matter | Articles |
Article
Victimization Devices:
Exploring Challenges
Facing Litigation-Based
Transnational
Environmental Justice
Sebastia
´n Ureta and Patricio Flores
Universidad Alberto Hurtado, Chile
Linda Soneryd
University of Gothenburg, Sweden
Abstract
With the emergence of global mechanism for toxic harm accountability, a transnational
environmental justice regime is slowly rising. One of the ways in which its taking form is
through transnational litigation schemes where corporations are being locally sued by
the alleged victims of their overseas misbehaviours. Using a science and technology
studies approach, this article deals with one of the most central components of those
schemes: victimization devices. Such concept refers to the highly varied sociotechnical
assemblages through which claims about toxic victimhood are mobilized in litigation-
based schemes, usually including components such as toxicological evidence and testi-
monies from the affected people. In order to explore the complexities involved in
transnationally mobilizing these devices, this article analyses the lawsuit presented in
Sweden by inhabitants of Arica, Chile, against the local mining corporation Boliden for its
alleged responsibility in dumping toxic waste near their homes in the late 1980s.
Keywords
Arica Victims, toxic harm, transnational litigation, victimisation devices, waste
Corresponding author:
Sebastia
´n Ureta, Department of Sociology, Universidad Alberto Hurtado, Cienfuegos 46, Santiago 8340588,
Chile.
Email: sureta@uahurtado.cl
Social & Legal Studies
2020, Vol. 29(2) 161–182
ªThe Author(s) 2019
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DOI: 10.1177/0964663919841121
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Introduction
On 8 March 2018, the District Court of Skelleftea
˚, in northern Sweden, ruled in favour of
Boliden Minerals – a Swedish mining corporation – at a complaint filed by a group of
inhabitants of the city of Arica, Chile. During 6 years, a coalition of highly qualified
NGOs, lawyers and activists tried to legally prove the company’s resp onsibility for
multiple negative health effects that these inhabitants had been experiencing after living
for many years close to highly toxi c smelter waste that was origina lly produced in
Boliden’s facilities in Skelleftea
˚and then shipped to Arica in the mid-1980s. The dis-
missal of the claimants’ arguments was a bitter disappointment for all the people and
organizations involved, whose decades-long work to some form of redress for the
affected population will have to keep waiting. This outcome also represented a setback
for the ongoing efforts to establish a transnational regime of legal accountability for the
wrongdoings of transnational corporations when operating abroad, especially in coun-
tries that lack a proper environmental regulation, such as the case of Chile in the 1980s.
Along with more conventional media-focused campaigns, transnational litigation for
toxic harm has become an increasingly popular way to enact a regime of global account-
ability for toxic harm. Usually, that alternative has been forced by the lack of other
means for putting forward the affected communities’ claims onto a global stage, espe-
cially given that states ‘widespread reluctance routinely to pursue environmental liability
through inter-state claims’ (Mason, 2005: 114), preferring instead to increase ‘the impor-
tance of private liability attached to operators of risk-bearing activit ies as the main
mechanism for progressing environmental liability’ (Mason, 2005: 114).
Despite this growing popularity, rules for transnational harm litigation are still ‘the
Yeti of international environmental law – pursued for years, sometimes spotted in rough
outlines, but remarkably elusive in practice’ (Percival, 2010: 38). Due to the lack of clear
rules, the processes usually ‘present complex questions of jurisdiction, choice of law,
and recognition and enforcement of foreign judgments’ (Byers et al., 2017: 286). The
complexity involved in those questions has meant that, as it happened in the lawsuit
against Boliden, most transnational trials have concluded without achieving any kind of
environmental justice for the affected, sometimes even worsening their situation, both
financial and socially due to the high costs involved in enacting such schemes.
At the centre of such difficulties is the very complex task of establishing a victim
status in an environmental crime for certain individuals and/or groups. According to
Williams’ (1996: 35) well-known definition, an environmental victim is usually under-
stood as ‘those of past, present, or future generations who are injured as a consequence of
change to the chemical, physical, microbiological, or psychosocial environment, brought
about by deliberate or reckless, individual or collective, human act or omission’. Fol-
lowing the conventional understanding, the definition establishes a direct causal rela-
tionship between some individuals, whose well-being has been affected by a change in
their environmental conditions, and a certain entity that has clearly caused such damage.
However, as most of the literature on the topic agrees, ‘environmental victimization do
not sit well with traditional models of criminal justice’ (Hall, 2014: 130), mainly because
‘cases of environmental victimization regularly differ from the “default” situation stud-
ied in victimology: one perpetrator (or a small number), one victim (or a small number);
162 Social & Legal Studies 29(2)
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