Both Defendant and Partner for Climate Change? Fighting Royal Dutch Shell in Civil Court

Niké Wentholt and Luna Bonvie join JiC for this guest post on recent civil litigation against Shell over climate change inaction in The Netherlands. Niké is a Postdoc and Luna is a project assistant for the ‘Dialogics of Justice’ project, a five-year research project at the University for Humanistic Studies, Utrecht investigating (legal) recognition procedures and reparation practices after human rights violations.

(Photo: Peter Boer/Bloomberg)

Last month, the Dutch district court in The Hague came to a long-anticipated conclusion in a so-called ‘climate case’. The judge ruled in favour of a group of Dutch plaintiffs, mostly represented by NGO Friends of the Earth Netherlands (Dutch: Milieudefensie), ordering Royal Dutch Shell to reduce the CO2 omissions of its Shell Group by net 45% by 2030, compared to 2019 levels. Friends of the Earth Netherlands hailed the ruling as a victory in the international battle against climate change.

The court ruling stands out as a landmark decision, creating new civil law jurisprudence that may eventually give rise to a situation where international corporations are held legally responsible for their contribution to climate change. Worldwide, approximately 1,000 similar cases are being prepared or are proceeding right now. What is the meaning of this civil court case in light of climate justice and environmental and human rights struggles? What can it teach us about the possibilities of addressing a global problem like climate change in the courtroom?

A socio-legal perspective can help us put this question into the right context. Friends of the Earth Netherlands pursues this legal path as one of many strategies aimed at societal change, including political lobbyism, awareness campaigns, and international policy change. The judicial process itself is up for social analysis too: legal anthropology shows how laws, courts and legal rulings reflect existing norms, create new norms, and offer a platform for dialogue and negotiations.

This focus on norms allows us to see that the district court ruling both fits within a wider development of addressing large scale (historical) harm in civil court, as well introduces new legal thinking on future harms and corporate responsibility.

Recent years have seen an increase in historical injustice cases in Dutch civil court. The cases on Rawagede (Indonesia), Srebrenica (Bosnia), Chora (Afghanistan), and the previous Shell-pollution case in the Niger Delta, suggest that there is a real opportunity to address past harm through civil law. The Friends of the Earth Netherlands ruling highlights the scope of civil law: it can be utilized as a platform for both transitional justice cases as well as environmental right claims. The judge thereby demonstrated that that the seemingly overwhelming global nature of climate change can be made fit for national civil law.

While Friends of the Earth Netherlands formulated their collective action on behalf of current and future generations worldwide, the court considered the interest of the global population as being too diverse. It did, however, find a homogenous interest among current and future generations in The Netherlands. Although the Dutch population’s interests too may vary, they are sufficiently coherent to allow for a collective action, which provided Dutch citizens with the opportunity to act as co-plaintiff (non-Dutch individuals were not able to join). The court thus recognized the global issue of climate change, but localized the impact it might have, thereby creating space in Dutch civil law for the NGO to bring its claim.

On this blog, David Krott has recently explored the relationship between environmental law and international criminal law. Despite obvious hurdles, international criminal law can provide some of the answers to address global environmental harm, he states. Friends of the Earth Netherlands and other similar organisations would eventually like climate change to be addressed through criminal law as well. The specific character of civil law, with its emphasis on the private sphere and harm, and criminal law, with the public interest and guilt in mind, can indeed come together to answer a wide array of challenging questions of climate justice, especially regarding the (shared) responsibility of non-state actors for global warming.

A second significant element to this court ruling is the ‘victory’ of Friends of the Earth Netherlands against an established institution like Shell. Socio-legal researchers emphasize that law often reflects hegemonic norms, favouring formal institutions over citizen-based groups. Nevertheless, as plaintiffs, Friends of the Earth Netherlands represented a coalition of organisations and citizens alike who formed the ‘young and future generations’ that they appealed to. It seems that (legal) institutions are increasingly used by NGOs or action groups to vocalize their arguments, whereby the link between criminal and private law is not as clear as it once was. Civil law thereby lends itself well to this sort of bottom-up movement, since no specific action from the government or public prosecutor is required.

A human rights perspective highlights a third ‘breakthrough’ element in this ruling. In the aforementioned historical injustice cases of Rawagede and Srebrenica, the issue for the judge has mostly been to determine whether violation had taken place and, if so, what kind of (monetary) remedy should be awarded to the claimants. This time however, Shell is ordered to change its future behaviour. In addition, one could argue this type of legal process reflects what could be described as the essence of the concept of human rights as inherent rights much better: rather than recognizing a violation after the fact, this ruling guarantees the opportunity to exercise these rights for future generations as well as current ones.

Moreover, the judge concluded that the goals set in the Paris agreement apply to international companies like Shell as well. While Shell likes to engage in distraction tactics by pointing at shared responsibility of civilians and politicians, the ruling stated that the responsibility of others does not absolve Shell of their own. Similarly to the civil court climate case initiated by NGO Urgenda against the Dutch state, the judge in Shell ruled that those whose actions impact citizens have a responsibility to act diligently, in the past as much as the future.

This same focus on the future can help us locate this court ruling in the broader societal conversation on climate change. Despite there being an obvious legal breakthrough, the ruling might have some unintended consequences.

Media broadcasting tends to demonize Shell. In turn, Shell has reacted guardedly, thereby putting itself in a victim role. The dichotomous structure of plaintiffs versus defendants adds to this narrative, but there is nothing inherently hostile about the way Friends of the Earth Netherlands or the judge has approached Shell. If one reads the ruling carefully, it seems instead the judge explicitly recognizes the role of Shell as a global player and therefore its responsibility when it comes to global issues. The same goes for the case the Friends of the Earth Netherlands started with: holding Shell accountable can also be seen as accepting Shell as important partner. While it is essential to watch Shell’s compliance with the court order closely, one can hope that Shell reads this as an invitation too. The goal should be to engage in a structural dialogue with Shell on the way forward, both regarding climate change and all of the social issues related to it. In this light, the ruling should be seen as having set the agenda for future conversations with multinational corporations, governments, activists, and those affected by global warming

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Climate Change, Environment, Guest Posts, International Law and tagged . Bookmark the permalink.

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