The Rise Of International Environmental Law In Litigation And Arbitration

In May 2021, a judgment of the Hague District Court ordering Royal Dutch Shell to reduce its worldwide CO2 emissions by 45 % by 2030 reverberated across the globe.

At first blush, the judgment is legally wide of the mark and its reasoning contrived. The instinctive response is to dismiss it as an outlier, arising in the specific context of Dutch law. Yet, from the perspective of public international law (PIL), the Hague District Court's judgment is far from surprising. Instead, it reflects two central developments in international environmental law (IEL) during the last two decades.

Trends in IEL

First, there is an ever-increasing effort to enforce and develop IEL rules in litigation and arbitration. Indeed, consistent with the growth and proliferation of IEL rules, the last two decades have marked the start of a phase of rapid growth in its judicialization.

While in the 1990s and early 2000s there were only a small number of climate-related cases, there are more than 1,600 such cases today. Chief among these are public interest or strategic climate-related cases with a visionary approach, seeking to influence public and private climate accountability. Indeed, resort to courts is one of the key emerging trends in IEL. Simply put, short of a comprehensive, multilateral binding international agreement with shared goals and tailored obligations, climate-related claims are widely perceived as the "second-best option for governing climate change".¹

Second, PIL is traditionally state centred. Private entities are primarily the objects rather than the subjects of PIL rules, and thus insulated from direct international responsibility for their environmental conduct. However, in the specific context of IEL, private entities that are large greenhouse gas emitters are incrementally at the fore of international rules. Indeed, a growing body of authorities is calling for rules which would channel responsibility for an environmental wrong on the polluter rather than the state. This ties in with the notion that a single state cannot adequately regulate the conduct of globally active greenhouse gas emitters. Consequently, while the majority of climate litigation cases are still brought against states, climate change cases are incrementally filed against private actors, mostly "Carbon Majors".

The right to a healthy environment

Climate protection advocates increasingly argue that a private entity's failure to reduce its emissions directly impinges on human rights, including those of children. They will seek to enforce those rights before courts and tribunals, capitalising on recent developments. This includes, most notably, the United Nations Human Rights Council's landmark recognition that having a clean, healthy and sustainable environment is a human right. It is the first time the right to a healthy environment has been formally recognised at a global level, following decades-long efforts, primarily by non-governmental organisations.

Even if courts or a tribunal confirm their jurisdiction to hear claims enforcing the right to a healthy environment and seeking compensation from private entities, there are still many arguments potentially defeating such claims. To name a few examples: under the Paris Agreement states do not owe an "obligation of result", as the duties of private entities can hardly exceed those of states; the concept of direct horizontal effect is limited to particular circumstances ordinarily defined by statutory law; and a causal link between particular conduct and the impact on climate change is virtually impossible to establish. However, there are two important caveats to this analysis.

First, IEL is one of the most dynamic fields of law. States will continuously tighten IEL rules and incrementally pass on their obligations to private entities. This may be coupled with a more radical shift from the orthodox view that private entities are the objects, rather than the subjects of PIL rules. As IEL rules proliferate and their addressees change, some defence arguments may disappear over the forthcoming months and years.

Second, the trend towards judicialization of IEL is set to grow, particularly in the context of climate change. As laws and policies fall short of what science demands, recourse to the courts is, in the eyes of proponents of climate litigation, inevitable. While courts in some jurisdictions may take a more conservative approach and dismiss claims based on unknown concepts, climate-related cases may be filed in numerous jurisdictions in parallel. Courts in different jurisdictions may construe human rights and the duty of care not to cause harm to another person, common to both civil and common law systems, more liberally than courts in Central European jurisdictions. And, as a greater body of cases endorses climate-related claims, previously unrecognised legal concepts may gain traction, even before courts which are commonly loath to endorse new and innovative legal concepts.

Footnote

1. Lavanya Rajamani, Our Future in the Balance: The Role of Courts and Tribunals.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.