Ordering Private Enterprises to Comply with the Paris Agreement: The Netherlands Court’s Landmark Decision
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Ordering Private Enterprises to Comply with the Paris Agreement: The Netherlands Court’s Landmark Decision

In late May of this year, the district court of Netherlands announced its judgment in Milieudefensie v. Royal Dutch Shell, which ordered the Royal Dutch Shell, a leading oil manufacturer, to reduce its carbon emissions by 45 percent (from its 2019 level) by 2030. This decision has been applauded by environmental activists who have called it a landmark case in the area of environmental litigation.

Several Dutch NGOs and more than 17,000 individual co-claimants filed the case in April 2019 against the Royal Dutch Shell (RDS) to request a declaratory judgment against the RDS for its failure to comply with the net zero carbon emissions by 2050 plan. The plan objective was to reach the goal of the Paris Agreement, which has been ratified by various countries, including the Netherlands. The claimants made these allegations because the RDS website states that the company currently aims for a 20 percent reduction in carbon emissions by 2030, which is less than the global set level of 45 percent.

After analyzing the allegations, the court directed RDS to reduce its carbon emission to the global limit on the basis of its duty of care, and because its 20 percent reduction goal violated basic human rights.

Duty of Care

The court observed that RDS owes a duty of care towards citizens as per the provisions of the unwritten standard of care mentioned in Book 6 Section 162 of Dutch Civil Code. This provision marks activities that are contrary to the rule of unwritten law pertaining to proper social conduct as unlawful. RDS’s failure to consider the duty of care towards citizen while making its policies has been considered to be one such activity. The court also considered the UN Guiding Principles (UNGP) on business and human rights, which discusses the role of businesses and States towards human rights. Analyzing both the provisions, the court held that the RDS policy of 20 percent carbon emissions reduction, which is less than the global set level of 45 percent, is contrary to the provision of standard of care of Dutch Civil Code. Further, the court observed that RDS owes a larger individual duty of care since it is one of the major carbon emitters in the world, and its emission has a greater impact on climate change than some other the countries.

Violation of Human Rights

An individual’s right to life and family has been recognized in the European Convention for the Protection of Human Rights (Articles 2 and 8) and International Covenant on Civil and Political Rights (Articles 6 and 17). Further, Urgenda v. The state of Netherlands,  López Ostra v Spain, Őneryildiz v Turkey, and the UN Human Rights Committee discussion on global warming, expressly state that global warming as a consequence of carbon emissions violates the ECHR and UDHR. Applying both these observations, the court held that RDS’s failure to comply with the global set level of reduction was a violation of ECHR and ICCPR. Some questioned whether these provisions applied to private corporations. In response, the court relied on the OECD Guidelines for Multinational Enterprises and United Nations Guiding Principles on Business and Human Rights, which state that businesses owe an obligation to protect human rights.

This is now considered a landmark case for various reasons. Firstly, this case marks the first time that a private enterprise has been ordered to comply with the the Paris agreement. Previously, in the Urgenda Climate Case and in Neubauer v. Germany, the court ordered States to comply with the zero carbon emissions target, but  this is the first order directed at a  a private enterprise. Secondly, this case will surely set a precedent for other countries to mandate  large businesses to comply with the zero carbon emissions target. Though the judgment does not have any authoritative value, the decision demonstrates a benchmark for obligations on emissions reductions and analysis of norms related to human rights and IEL. In Netherlands, this historic decision could positively increase the class of human rights violation actions before the courts that seek climate justice and damages for detriments caused by excessive emissions.

 

Nabil Iqbal and Syeda Mehar Ejaz are law students at Jamia Millia Islamia in New Delhi, India.

 

Suggested citation: Nabil Iqbal and Syeda Mehar Ejaz, Ordering Private Enterprises to Comply with the Paris Agreement: The Netherlands Court’s Landmark Decision, JURIST – Student Commentary, June 22, 2021, https://www.jurist.org/commentary/2021/06/iqbal-ejaz-netherlands-court’s-landmark-decision/.


This article was prepared for publication by Heidi Johnson, JURIST Associate Editor. Please direct any questions or comments to her at commentary@jurist.org


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