Milieudefensie summons Shell: Similar obligations for States and companies when it comes to CO2 reduction?

Blog ClaireClaire Loven

In October 2019, The Hague Court of Appeal rendered an important judgment in the Urgenda case. Urgenda is a Dutch foundation fighting for a sustainable society, which started a legal case to force the Dutch government to adopt more stringent climate policies. In that case, The Hague Court of Appeal found a violation of Articles 2 (right to life) and 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR), and ordered the Dutch State to reduce greenhouse gas emissions by at least 25 per cent by the end of 2020. Inspired by this judgment, the NGO Milieudefensie (Friends of the Earth Netherlands), together with several related organisations, has taken yet another step in climate change litigation in the Netherlands by summoning Shell, one of the largest oil companies in the world. Although Milieudefensie is petitioning a company instead of a State, the claim is the same as the one against the State in the Urgenda case. Milieudefensie requests the court to order Shell to reduce its greenhouse gas emissions. This claim is founded on the argument that Shell is guilty of hazardous negligence and violates human rights because of its (lack of a) climate policy. This argument shows that Milieudefensie has not only taken a further step in climate change litigation, but also contributes to the trend of increasingly holding private actors accountable for human rights violations. In this blog, I discuss Milieudefensie’s claim in more detail, and analyse whether, and how, human rights arguments can be used to impose greenhouse gas reduction orders on private actors.

Milieudefensie has not chosen just any company as its adversary in the court proceedings. The Anglo-Dutch oil and gas company Shell is the fifth largest company in the world and the largest company in Europe based on revenue. Shell finds itself high in other rankings as well. In the top 100 of biggest greenhouse gas emission producers between 1988 and 2015, Shell ranks ninth. For these reasons, Milieudefensie argues that Shell has a responsibility to fight climate change and claims that Shell has to reduce its emissions by 45 per cent in 2030 and by 100 per cent in 2050 when compared to its 2010 emission levels.

Milieudefensie’s claim is based on the Dutch private law provision of an unlawful act (Article 6:162 Dutch Civil Code). Based on this provision, a person acts unlawfully against another person when their act infringes upon someone else’s right; when an act or omission violates a duty imposed by law; or when an act or omission violates an unwritten duty of care. According to Milieudefensie, Shell is guilty of hazardous negligence because of its (lack of a) climate policy (i.e. refusing to make a proportionate emission reduction to help mitigate climate change). It thereby acts contrary to the unwritten duty of care included in Article 6:162 of the Dutch Civil Code. The unwritten duty of care is an open legal norm of a highly causistic nature. This means that whether a duty of care exists in a specific case depends on what is generally accepted behaviour. It is also for this reason that Milieudefensie relies on global climate agreements, human rights, and the ‘kelderluik test’ to argue that Shell has a duty of care to take additional reduction measures. I will leave the ‘kelderluik test’ – a Dutch private law doctrine that prescribes that individuals act unlawfully when they unnecessarily endanger others if the danger could reasonably have been prevented –  for what it is and focus on the human rights argument in the next section.

The difference between Urgenda and Milieudefensie

Although Milieudefensie relies heavily on the Urgenda judgment of The Hague Court of Appeal when it comes to the human rights argument, there is an important difference between the two cases. The Urgenda case involves a claim against the State, whereas the Milieudefensie case involves a claim against a private actor. This difference is highly relevant in the light of the origins and background of human rights documents and treaties, such as the ECHR. These were drafted as a reaction to the Second World War, which had shown how States can misuse their sovereign power to deeply violate individuals’ dignity, autonomy, and freedom. Human rights documents and treaties are, therefore, originally designed to protect individuals against the State. Over time, however, the idea that also private actors may have a responsibility to respect human rights has increasingly gained support (see for example the UN Guiding Principles on Business and Human Rights that Shell has endorsed). Nevertheless, to this day private actors cannot be held directly accountable for human rights violations before international or regional human rights courts or monitoring bodies, nor is it common for domestic courts, at least in the Netherlands, to directly apply international human rights treaties in relations between private actors. In practice this means that whereas it was possible for The Hague Court of Appeal to directly apply Articles 2 and 8 ECHR by finding the basis for the unlawful act of the Dutch State in the infringement of someone else’s right, the court in the Milieudefensie case cannot rely on that same argument. So how does Milieudefensie propose to resolve this issue?

Milieudefensie does so by making use of the so-called doctrine of ‘indirect horizontal effect’. In Dutch legal doctrine, this means that human rights are used to colour private law interests or interpret open private legal norms in a dispute between private actors (for the Netherlands, see for example the Mensendieck– and the Turkse werkneemster case). Milieudefensie makes use of this doctrine by arguing that the duty of care included in Article 6:162 Dutch Civil Code must be interpreted in the light of, amongst others, the duty of care emanating from Articles 2 and 8 ECHR. Specifically, Milieudefensie argues that “[t]he duty of care which the Court of Appeal has formulated for the State and which, according to Milieudefensie also applies to Shell because of the indirect horizontal effect, is the positive obligation to undertake specific action to prevent a future infringement of the interests protected under Articles 2 and 8 of the ECHR” (Summons, para. 670). In the words of The Hague Court of Appeal, this positive obligation consists of the duty to protect people against “the real threat of dangerous climate change, resulting in the serious risk that the current generations of citizens will be confronted with loss of life and/or disruption of family life” (Urgenda judgement, para 45). Milieudefensie justifies the claim that Shell has a similar obligation as the Dutch State by arguing the fact that Shell’s power over individuals is comparable to the State’ power, and that Shell has committed itself to relevant international agreements (Summons, paras. 724 and 727).

Acceptance of (in)direct horizontal effect in the Milieudefensie case?

Milieudefensie’s argument comes down to the fact that Shell, just like the State, has a duty of care to protect the right to life and the right to an undisturbed family life. If, indeed, the court decides to order a reduction based on Milieudefensie’s human rights argument, this would mean that a positive obligation, originally formulated for the State based on Articles 2 and 8 ECHR, would be imposed on a private actor. This would come very close to holding a private actor directly responsible for protecting international human rights provisions. To my knowledge, this would be unprecedented in Dutch private law and could have far-reaching consequences, even outside of the Netherlands, for the duty of private actors to protect human rights. It is precisely for this reason that it is far from certain whether the court will accept Milieudefensie’s argument. It may continue to hold that it is only the State’s duty to protect ECHR rights, and it may not want to recognise that (powerful) private actors have similar obligations. It is this issue that makes the Milieudefensie case so exciting, and that will make it difficult for the court to make a decision. To learn the answer, and see what the future of human rights obligations for private actors may look like, we can only await the beginning of the court’s sessions and, finally, the court’s judgment, which are expected in 2020.