By Layal Alghoozi and Emma Schulte
Over the last few months we ran a series on international environmental law. This series has now ended and we would like to extend our warmest gratitude to all the authors involved.
As a reminder to our readers,
- The series kicked off with a fantastic piece by Moisés Montiel, who argued that, based on the ICJ’s case-law, environmental protection is an international obligation (almost) completely applicable to armed conflicts.
- In the following post, Anmol Gulecha guided us through the contributions of domestic courts in the field of international climate change law.
- The effects of corporations were examined next, in the excellent critique of TNCs in Latin America, by Lydia Kriki.
- We also had Manoëlle Koninckx argue for a pragmatic approach to ecocide, and made the case for its inclusion in the ICC’s core crimes.
- Staying on the topic of ecocide, Anh Nguyen journeyed us through the fact that Agent Orange was the first designated instance of this, and in her subsequent post also examined the contemporary effects of Agent Orange by examining the French Court’s dismissal of the lawsuit against Agent Orange manufacturers.
- Next, Melina Lima, Marina Carvalho, and Catarina Baddini examined the possible path the IACHR can take in tackling environmental issues, by taking inspiration from the ECtHR.
- Lastly, the erga omnes character of climate change litigation was analysed by Aaryyan Aathreya.
Our theme on international environmental law could not have come at a more defining time for the environmentally disheartened community. Last week, following a federal court ruling in Australia finding a duty of care to protect young people from climate change, the District Court of the Hague in the case of Milieudefensie v Royal Dutch Shell held the major oil and gas-producing company Royal Dutch Shell (RDS) liable for its contribution to climate change, reaffirming the relevance of international human rights in what is becoming an era of rights-based claims against the adverse effects of climate change. This decision reinforces the landmark Urgenda case by unequivocally attaching responsibility to private companies to reduce their Co2 emissions, finding RDS’ activity to be unlawful while compelling it to reduce its emissions based on the Paris Agreement and international human rights law.
The case was mounted as a public interest class action suit by Milieudefensie and 17,379 other individuals as well as six NGOs. The Shell group, a subsidiary body of Royal Dutch Shell was found to emit Co2 at an alarming rate, and as a result of its business activity therefore contributed to climate change and global warming in the Netherlands. Its activities were found to threaten Dutch residents due to the onset impact of climate change, including heat waves and heat stress, drought, floods, food and water insecurity in the Netherlands (para 2.3.7-2.3.9).
The Court ultimately found an obligation on RDS to reduce Co2 emissions of its Shell group by 45% by the end of 2030 through the latter’s corporate policy (para 4.1.4). In its most unequivocal deliberation on Shell’s activity, the Court found that there was no dispute over the degree of global Co2 emissions of Shell group contributing to global warming and climate change (para 4.4.5) and found that RDS’ policy constitutes ‘an imminent violation of RDS’ reduction obligation’ (para 4.5.3).
Although the basis of the judgment predominantly rests on Dutch tort law and an unwritten standard of care emanating from Book 6 Section 162 of the Dutch Civil Code, the Court found that RDS owed a duty to reduce its Co2 activity based on an interpretation of international human rights obligations afforded to the Dutch residents under the right to life (Article 2) and family life (Article 8) as stipulated by the ECHR and ICCPR. This very reasoning follows the emergence of rights-based climate claims like the Norwegian case People v the Arctic, where the claimants argued that Norway’s decision to grant licensing to an oil company is incompatible with the right to life and right to family life. However, just like in the Dutch case before us, the court did not find a sufficient nexus between the direct harm posed by Norway’s decision to grant licensing and the ECHR rights affected as RDS was not found directly responsible for implicating these human rights. However, the role of human rights was considered and was relied on for interpreting the standard of care required by RDS (para 4.4.9). The Court reaffirmed the relevance of the UN Guiding Principles on Business and Human Rights by confirming the responsibility of corporations to respect human rights in their business activities.
Notably, the Paris Agreement was likewise relied on to interpret the unwritten standard of care owed by RDS, relegating the Agreement to a ‘universally endorsed and accepted standard’ to limit global warming below 2ºC, preferably to 1.5 ºC compared to pre-industrial levels (4.4.27). It is this consensus that informed the obligation owed by RDS to reduce its activity/emissions, despite the Paris Agreement being non-binding on RDS nor signatory states for that matter. Indeed, the Court based the requirement to reduce emissions by 45% on the IPCC reports informing the Paris Agreement, noting that states alone cannot achieve the goals mandated under the Paris Agreement.
While the Court did not directly attribute human rights obligations to RDS, apply the UN Guiding Principles or the Paris Agreement as hard law, this case nevertheless represents a major step towards attributing responsibility for climate change and global warming, a great win for the environmentally disheartened community.
The positive changes in attitude regarding the approach of courts to environmental protection, whether domestic or international, has been a recurring theme throughout the entirety of our international environmental law series, and definitely a good note upon which to conclude. We would hereby like to once again thank the authors involved and encourage our readers to check out their contributions.