Human rights in climate litigation – thoughts from the Dutch Court of Appeal

In yesterday's highly anticipated judgment in the appeal of the Milieudefensie et al. vs. Royal Dutch Shell case, the Dutch Court of Appeal gave some interesting thoughts on climate change and human rights, considering both the European Court of Human Rights' landmark Swiss decision and non-legally binding soft law instruments.

It recognised that it is primarily up to legislators and governments to take measures to minimise dangerous climate change, since most obligations concerning human rights apply vertically i.e. between a government and its citizens. However, it considered the doctrine of indirect horizontal effect of human rights may lead to courts including fundamental rights and values in their considerations of private law concepts governing the relationship between citizens and private companies. It concluded that companies may also have a responsibility under Dutch law to take measures to counter dangerous climate change, as part of what it described as a social standard of care, which may require action which is not prescribed by specific public law rules, or otherwise. It noted particularly that the rights protected under Articles 2 and 8 ECHR are affected by climate change, and those rights are decisive for the interpretation of the social standard of care under Dutch law and what can be expected of private companies under that standard.

This is a fascinating analysis of human rights obligations, and one which goes beyond how the ECHR is generally interpreted in the UK. It will be interesting to see whether courts in other ECHR member states develop this line of reasoning further.

See our article on the decision for more detail.