Across Europe, public authorities are exploring data-driven tools to support decisions in child protection and youth justice systems. These systems promise consistency and efficiency, identifying patterns of potential neglect or harm through statistical modelling. Yet predictive technologies operate on historical datasets. Where those datasets reflect socio-economic inequalities, over-surveillance of certain communities, or institutional bias, algorithmic outputs may reproduce and amplify existing disparities rather than mitigate them. Although the Dutch childcare benefits scandal did not arise directly within child protection law, it exposed a structural danger increasingly relevant across Europe: when algorithmic systems classify families through predictive models, the consequences may profoundly affect children’s rights and family integrity.

This tension strikes at the core of Article 3 of the UN Convention on the Rights of the Child (CRC), which requires that the best interests of the child be a primary consideration in all actions concerning children. As clarified by the UN Committee on the Rights of the Child in its General Comment No. 14 (2013), this principle requires an individualised assessment grounded in the specific circumstances of each child, taking into account their unique situation, needs, and vulnerabilities.

Similarly, decisions that interfere with family life engage Article 8 of the European Convention on Human Rights (ECHR), and are only justified where legal, necessary, and proportionate to the legitimate aims pursued by the interference. When algorithmic risk scores significantly influence decisions about monitoring, intervention, or potential removal, transparency and individualised judicial oversight become essential safeguards.

The Dutch childcare benefits scandal illustrates how reliance on automated risk categorisation can undermine procedural fairness. Affected families often struggled to understand how decisions were reached or to effectively challenge risk classifications, as documented in official investigations and public reporting on the scandal. In child protection contexts, similar opacity could weaken trust in institutions and compromise the legitimacy of state intervention.

This does not mean that technology has no role in safeguarding children. Data analysis may help identify systemic gaps or support early intervention strategies. As illustrated by the Dutch childcare benefits scandal, automated risk assessments may flag families as “high risk” without adequately accounting for individual circumstances, leading to disproportionate and unjust outcomes. However, algorithmic tools must remain subordinate to human rights principles. The best interests of the child require more than statistical probability; they demand contextual sensitivity, proportionality, and meaningful judicial oversight.

The broader European regulatory landscape reinforces this concern. The emerging framework of the European Union Artificial Intelligence Act recognises that certain AI systems used in public administration and law enforcement pose “high-risk” implications for fundamental rights. Where such systems affect children and families, heightened scrutiny is not optional but necessary. Algorithmic efficiency cannot replace individualised human judgment grounded in dignity and fairness.

As Europe moves toward greater reliance on AI-driven governance, child protection and youth justice systems must resist technocratic overconfidence. Algorithms may inform decisions but they cannot determine them. A rights-based approach requires that predictive tools operate within clear normative boundaries, ensuring that the best interests of the child remain a living legal principle rather than a statistical abstraction. If algorithmic governance expands without robust, rights-based safeguards, the promise of child protection may quietly transform into a new architecture of digital suspicion.

On July 9^th, 2025, the Grand Chamber of the European Court of Human Rights (ECtHR) in Ukraine and the Netherlands v Russia clarified several intriguing questions. Scholars like Marko Milanovic consider the Judgement (merits) as ‘As good as it gets (Almost)’.  The Judgement broadened the jurisdictional scope of the European Convention on Human Rights (Convention) and the standard of attribution, ie, the conduct of pro-Russian separatists from 2014 is attributed to Russia, which implies that the act of a de facto organ with complete dependence and control on the State is attributed to that State, thereby consolidating the observations of ICJ in Nicaragua and the Bosnian Genocide.   Additionally, clarity was rendered on jus ad bellum (the law governing the use of force) and its wider implications on human rights. In this post, I map the court’s treatment of the relationship between International Human Rights Law (IHRL) vis-à-vis International Humanitarian Law (IHL). The findings are significant, as the court (including the ICJ) has grappled with this issue since the convergence of both regimes. The attitude of the Court indicates a shift towards norm coordination over norm priority in line with contemporary practice.

Treatment of IHL Question

In situations of armed conflict, the scholarship is nestled between the principle of lex specialis and the principle of complementarity (co-application).  Lex specialis favours the application of specialised rules of IHL, whereas complementarity favours the co-application of IHL and IHRL.

The ICJ, for instance, has endorsed both these frameworks. The Wall Advisory opinion [105] backed IHL as lex specialis, whereas in DRC v Uganda [180], it abandoned the lex specialis in favour of complementarity. In the words of the ICJ, “both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration” [216]. The Grand Chamber’s ruling makes it evident that IHL is used as an interpretative tool to gauge the scope of the Convention in terms of human rights guarantees. I reckon this jurisprudential development indicates that human rights, which was traditionally conceived as a self-contained or specialised regime, is mindful of the development in other regimes; no wonder the Grand Chamber observed that, “its duty to interpret the Convention in the light of the rules set out in Article 31 § 3 of the 1969 Vienna Convention on the Law of Treaties and so far as possible in harmony with other rules of international law of which it formed part, including IHL”  [22]. Hence, the Grand Chamber abandoned lex specialis, barring scenarios in the absence of derogation under Article 15 of the Convention, as the provisions might conflict with one another.

Diminishing Relevance of Lex Specialis

The Grand Chamber’s Judgement clarified the fluctuating relationship between IHRL and IHL. This is timely because, as Prof. Yuval Shany aptly puts it, “[T]he instability of existing law and practice relating to co-application caused by the aforementioned two tensions is at the root of efforts to move beyond the lex specialis framework.” The Grand Chamber has echoed this sentiment; also, lex specialis can pose a unique set of challenges. In the context of IHL and IHRL, it is difficult to locate which regime constitutes lex specialis, as lex specialis comes into play in cases of incompatible norms. In certain scenarios, IHRL provides more nuanced conduct of regulation than IHL in situations of armed conflict or occupation. For example, in the Wall Advisory opinion, Israel’s construction of the wall according to the ICJ violated the panoply of IHRL norms in the Occupied Palestinian Territories (OPT); these violations had no parallel in the IHL regime. Similarly, in situations involving arbitrary deprivation of liberty or non-refoulement, the concurrent application of IHL and IHRL would offer comprehensive protection by filling the gap left by the other regime.  Therefore, in a situation of armed conflict, the co-application would offer a higher standard of protection for the victim, rendering IHRL as a preferred regime geared towards pro hominem interpretation. This position aligns with the views of the Human Rights Committee (HRCtee) General Comment 35, where it was observed that Article 9 of the Covenant applies to situations of armed conflict to which rules of IHL are applicable; in other words, rules of IHL are relevant in interpreting Article 9 of the Covenant. Moreover, complementarity means excluding the controversial ‘context of chaos’ embraced in Georgia v Russia (II), which plausibly abandoned the Convention because of the lack of effective control.

Conclusion

The Grand Chamber brings to the fore the diminishing relevance of the lex specialis framework; instead, the emphasis is on complementarity. However, there may be backlashes from the States, Judges, and scholars who may view IHL as lex specialis because of the inherent distinction in these regimes. The Grand Chamber giving impetus to norm coordination over norm priority would be relevant for the comprehensive protection of victims. This does not come as a surprise, as the ICJ, which introduced the lex specialis framework, has deserted it.

Traditional Owners of the Boigu and Saibai islands, Uncle Pabai Pabai and Uncle Paul Kabai (Applicants), have filed a class action in the Federal Court against the Commonwealth Government for failure to protect them from climate change. Success would be ground-breaking for raising Australia’s climate mitigation efforts, yet hurdles remain, including in determining the role of science and the role of courts in climate change litigation.

The Case

The Applicants claim the Australian Government has breached a duty of care to take reasonable steps to protect the inhabitants of Zendath Kes, their traditional way of life, and the surrounding marine environment from the current and projected impacts of climate change. The claim emphasises the protection of traditional culture, known as Ailan Kastom – a spiritual and physical connection to the land and waters in Zendath Kes, which is existentially threatened by climate change.

The Applicants seek declaratory and injunctive relief in order to require the Government to reduce Australia’s greenhouse gas (GHG) emissions in line with the “best available science” targets.

Climate litigation in context

“Climate framework cases”, like Pabai Pabai v Commonwealth, challenge a government’s overall efforts to reduce GHG emissions. The first successful framework case was Urgenda in the Netherlands, with two other successful cases – Klimaatzaak (Belgium, on appeal), and Neubauer (Germany). These cases have drawn on fundamental human rights (in addition to a duty of care). However, if successful, the Australian case would be the first to rely on solely on a tortious claim, in absence of Federal human rights protections.

The Role of Science

The Federal Government’s current climate policy is to cut GHG emissions by 43% (below 2005 levels) by 2030 and net-zero emissions by 2050. The Applicants argue that “best available science” requires Australia to cut its GHG emissions by 74% by 2030 (from 2005 levels) and achieve net-zero emissions by 2035, to keep global warming below 1.5 degrees. The Applicants claim that holding the global temperature increase to 1.5 degrees would prevent the most significant projected climate harms, in line with the Paris Agreement.

The role of science will likely be a contested issue in the case, including what science is considered the “best available” and how situations of scientific uncertainty should be addressed.

The Government’s Defence raises scientific uncertainty as one basis for dismissing the Applicants’ claim. This includes disputing whether “tipping points” for climate harm in Zendath Kes will occur at 1.5 degrees, and not 2 or 3 degrees warming. Furthermore, the Government argues there is scientific uncertainty as to the causal nexus between its emissions target and the impacts of climate change in Zendath Kes. It remains to be seen whether the Federal Court will appeal to the “precautionary principle”, a pillar of international environmental law, to justify obligations on the Government where scientific uncertainty exists and grave harms are at stake.

Finally, the “fair share” of GHG emission reductions to be undertaken by Australia, as opposed to other countries, is contested. Scientific and other methodologies differ on the calculation. The IPCC reports, generally taken as “best available science” do not address country-specific allocations, only a global average rate of reduction.

Role of Courts

Another anticipated tension in the case will be the role of courts in assessing Government action on climate change. The Applicants seek relief to require the Government to reduce GHG emissions, in line with “best available science”. How the Government meets these higher targets would remain a matter of policy. The Government argues a judicial ruling on Australia’s GHG emissions targets involves “questions of policy-making unsuited to judicial determination”.

The previous Minister  for the Environment v Sharma case sought to impose a duty of care on the Minister to take reasonable care to avoid future climate harms on young people, when approving a new coal project. The duty was dismissed on appeal. One basis (central to Chief Justice Allsop’s reasoning) was that the duty would require consideration of questions of policy “unsuitable for the judicial branch to resolve.”

Relevantly, Sharma concerned a specific exercise of the Environment Minister’s decision-making power, whilst Pabai seeks the Courts to enforce an overall emissions target, without judicial comment on policy implementation. As such, questions of policy-making in Sharma and Pabai seem distinguishable and not settled by Sharma.

How the Australian Federal Court addresses these questions on the role of science and the role of courts will likely be influential for other countries facing similar cases on state climate inaction, and significant for the lives and continued culture of First Nations people in the Zendath Kes. The judgment is expected in late 2024.

To reach this conclusion, it is indispensable to understand the regulatory essence of the Court decision. Milieudefensie et al. (a group of associations, foundations, and 17,379 individuals) invoke the right to life and the right to respect for private and family life (under Articles 2 and 8 ECHR, and Articles 6 and 17 ICCPR), and base their claim on a remarkable Dutch tort provision. Book 6 Section 162 of the Dutch Civil Code allows for a rather broad interpretation of a tort (violation of proper social conduct according to unwritten law [2]), while it specifies that such accountability can also arise from generally accepted principles, the so-called common opinion [3]. In order to determine the common opinion on the question at issue, namely, whether Shell has the obligation to reduce its CO₂ emissions, the Court followed a key guideline: the size of Shell and its influence as the parent company.

The Court also grounded its reasoning on climate science and the accompanying international standards, focusing on the Paris Agreement, the European Convention on Human Rights, the International Covenant on Civil and Political Rights, and the UN Guiding Principles on Business and Human Rights; notably none of which impose binding obligations on corporate actors. Due to their fundamental value, the Court still decided to include human rights in the assessment, highlighting that human rights also entail the protection from anthropogenic climate change. In determining the corresponding corporate responsibility, the Court concluded that much may be expected of Shell. It is a major emitter of greenhouse gases, exceeding the emissions of many States, and it exercises a dominant policy-setting position within the Shell group. Therefore, the Court concluded further that Shell has an obligation of result to reduce the direct CO₂ emissions of the Shell group (Scope 1). With regard to the emissions of its suppliers (Scope 2) and its end-users (Scope 3), the Court lowered the duty to a significant best-effort obligation, taking into account Shell’s limited influence on these emissions.

Traditional legal doctrines reach their limits when deployed as a methodology to analyse the nature of this novel judgment. Instead, deploying a Law and Economics perspective turns out to be more useful, shifting the ex post judgement to more comprehensive ex ante considerations. From an economic point of view, CO₂ emissions represent an externality: the vast costs caused by burning fossil fuels are not borne by the emitter and are not included in the market price. The implication is twofold: the externality leads to an inefficient allocation of resources, while the cost burden remains with the general public, more precisely, with those most vulnerable in the world.

With this in mind, the Court decision can be seen as an attempt to prevent the externality from arising. If this end is desirable, however, depends on the means employed. The Court expects Shell to achieve the reduction of its direct emissions (obligation of result for Scope 1). For the indirect emissions, Shell is only expected to do the best it can (best-effort obligation for Scope 2 and 3). Taking into account transaction cost economics, this differentiation turns out to be crucial. It not only retains a considerable scope, lowering future regulatory costs arising from corporate inaction, but it also interferes with business operations as minimal as necessary, granting the biggest possible entrepreneurial leeway.

Going beyond traditional legal doctrine, one can discover a promising regulatory approach worth developing further: such an example can be found in the Shell case. By applying an interdisciplinary perspective, the Court’s decision appears to be in line with basic economic considerations, contributing both to environmental interests and to market efficiency.

Further in-depth analysis can be found in Baumann, Alexander Gian-Carlo: Milieudefensie et al. v. Royal Dutch Shell – Law and Economics of Corporate Responsibility, in: Peter Nobel/Alexander Gian-Carlo Baumann/Elias Aliverti (Eds.), Law and Economics in all seinen Facetten. Festschrift zu Ehren von Klaus Mathis, Berlin 2023, pp. 179–202.

In late October, Brazil ousted incumbent President Jair Bolsonaro and elected Lula, who has since promised to cut deforestation of the Amazon to zero by 2030. Perhaps equally striking in Brazilian law and politics was a ruling against Bolsonaro’s government handed down on 30 June by the Federal Supreme Court in PSB et al. v Brazil, a case of longstanding interest to human rights commentators discussed on the Oxford Human Rights Hub in 2020.

The remarkable element of this judgment is its treatment of the Paris Agreement.  As the delegates at Sharm el-Sheikh Climate Change Conference (COP27) have recently agreed to a fund which will aid developing countries with climate disasters, PSB v Brazil shows that such international agreements can be made potent at a national level. This also prompts consideration of how the Paris Agreement has been either bolstered or watered down in other jurisdictions.

The Decision

PSB v Brazil originated as a Direct Act of Unconstitutionality filed in 2020 by four political parties, who argued that the government’s failure to keep the National Fund on Climate Change operative violated the constitution. The decision begins with a presentation of climate change as an existential threat to humanity: the crisis ‘may endanger the survival of man on Earth’ [7]. Tackling climate change is also placed in the international arena, since ‘the solution […] depends on […] every country’ [8].

Subsequently, the judgment deems Brazil’s recent attempts to tackle climate change insufficient [14], and concludes that Brazil is ‘moving in the opposite direction to the commitments made’ [15]. Following, and supported by the observation that ‘human rights do not exist on a dead […] planet’, the Paris Agreement is taken as a binding international human rights treaty: ‘the Constitution recognizes the supralegal character of the international treaties concerning human rights of which Brazil is party’ [17]. This, taken together with the frustration of constitutional rights to a healthy environment [16] and the separation of powers [28], renders the government’s actions unconstitutional.

Comparisons

Lord Carnwarth recently urged us to ‘keep in mind that we have at international level, the underpinning of the Paris Agreement.’ But giving force to the Agreement at a national level has been divisive. In France, as Stéphane Hoynck discussed in her commentary on Commune de Grande-Sythe, the Paris Agreement is a part of national law. Similarly, the landmark Urgenda ruling depended on the Dutch Supreme Court interpreting the Paris Agreement as binding. In that case, the Paris Agreement was not construed as a human rights treaty, but the Supreme Court did argue that the state is responsible, according to ECHR Articles 2 and 8, to limit excessive emissions.

Such interpretations of the Paris Agreement contrast starkly with that of the US Supreme Court in WV v EPA, which did not mention the Agreement and has effectively precluded the EPA from attempting an ambitious programme without legislative support. The Agreement has been controversial in UK courts too: the Supreme Court in Heathrow Airport Ltd held that the Agreement was not ‘government policy’, although a recent English High Court decision found the government’s Net Zero Strategy partly unlawful by reference to the Agreement. Brazil is not the only judiciary which has given teeth to the Agreement, but it has done so to a far greater extent than the US or the UK, and it has been the first to do so by interpreting it as a binding human rights treaty.

Conclusion

In the aftermath of the case, it was thought that the success of PSB v Brazil might engender further efforts towards activist litigation to challenge Bolsonaro’s government on climate change. That possibility is less pertinent now Lula has announced his ambitious climate targets. Instead, the main upshot from the case is that its treatment of the Paris Agreement highlights the importance of international climate agreements having sufficient force at the level of domestic enforcement. That the Brazilian Supreme Court did so by classing the Agreement as a human rights treaty also represents the trend towards climate and human rights law growing ever closer.

Want to learn more?

• Read: Another ‘Green Reading’ of Article 8 of the ECHR in Pavolv & Ors v Russia
• Read: Appraising the Limitations of Linking Climate Reparations to Human Rights
• Listen: Christina Voigt on ecocide
• Read: What do Rivers have to do with Human Rights? A Spotlight on Recent Problems
• Read: Challenging Regression in Climate Commitments: Doctrine of ‘Non-Retrogression’ to the Rescue?

The term ‘dangerous’ creates an interpretative challenge in climate litigation as it appears in Article 2 of the UN Framework Convention on Climate Change (UNFCCC), which sets an ultimate objective of ‘preventing dangerous anthropogenic interference with the Earth’s climate system’ while leaving the term undefined. Some States suggested that achieving the long-term temperature goal of the Paris Agreement would be sufficient to protect against dangerous climate change. Most climate vulnerable States objected, pointing to the devastating consequences of climate change they already suffer at current levels of warming as a result of decades of global inaction. As a result, the precise meaning of Article 2 UNFCCC remains unclear.

In Urgenda, the Supreme Court’s reasoning suggests that dangerous climate change will likely only occur beyond a 1.5°C or 2°C global temperature rise. It even goes as far as referring to warming of up to 1.5°C as ‘safe’. This assumption is problematic from a human rights perspective, as it stands in stark contrast with the experience of those whose rights are already being violated as a result of climate impacts such as rising sea levels, floods, heatwaves, droughts and desertification. Notably absent from the judgement is any reference to the unprecedented climate change impacts already being experienced in the Dutch Caribbean, such as the deadly hurricane Irma.

The situation of the Dutch Caribbean was never raised in proceedings, making it difficult for the Supreme Court to establish violations of the rights of these inhabitants. Nonetheless, the Supreme Court could have taken these rights into account in the interpretation of Article 2 of the UNFCCC. Doing so proprio motu would have been in line with the broader purpose of cassation, which extends beyond dispute resolution to include safeguarding the development of the law in a manner that is consistent with the ECHR.

Urgenda initially pursued the claim on behalf of individuals and future generations on Dutch territory as well as outside the Netherlands. The District Court upheld this claim, recalling the potentially existential threat to Small Island States. However, it seems to have disregarded this fact in its analysis of the Netherlands’ mitigation obligations. The Court of Appeal took an even narrower approach by declining to engage with the extraterritorial or intergenerational aspects of the claim. This was largely a result of judicial economy: the claim was admissible on behalf of the current generation of Dutch nationals, so dealing with the broader claim concerning other categories of actual or potential rightsholders was deemed unnecessary. Neither of the parties challenged this approach in cassation. Accordingly the Supreme Court, like the Court of Appeal, confined its human rights analysis to the future threat of climate change for residents of the Netherlands.

An exclusive focus on residents is too narrow when a Court is interpreting a treaty that provides a framework for climate action based on a globally agreed objective. This ultimately results in an aggravation of injustice, with the lowest standards of action imposed on States that are least vulnerable to the impacts of climate change due to their geographical circumstances and greater capacities to respond to these impacts (which, in turn, are partly the product of centuries of emission-producing activities). Conversely, it poses the greatest burden of action on the most vulnerable States which tend to be the least responsible for causing climate change. This interpretation contradicts the principle of common but differentiated responsibilities and respective capabilities (CBDRRC), including the Supreme Court’s own finding that the principle implies that States’ mitigation obligations are proportionate to its share of the responsibility for causing climate change.

The Supreme Court’s failure to recognise the extent to which climate change has already dangerous proportions both within and outside the Netherlands highlights the risks associated with climate litigation before a court located in a site of privilege, which clearly perceives the hazardous consequences of climate change as remote. The resulting interpretation of Article 2 of the UNFCCC reflects this blind spot, and future climate litigation should take care not to replicate it in pleadings and judicial reasoning.

This post forms part of the Litigating for Climate Justice: Views from the Frontlines blog series. 

In this case, the Dutch government had implemented a risk-classification technology called System Risk Indicator (“SyRI”). The SyRI system allowed data across government databases to be collated for the purpose of generating ‘risk reports’ – using personal data to classify individuals according to the possibility of risk they posed to commit fraud. These reports could be utilised in investigations against certain individuals suspected of committing benefits or tax fraud. A coalition of civil society groups and individuals challenged the Dutch Government in the Hague District Court, arguing that SyRI violated human rights protections, as well as the General Data Protection Regulation (“GDPR”).

The Hague Court categorically struck down the SyRI system on the grounds that it violated the right to privacy enshrined in Article 8 of the European Convention on Human Rights (“ECHR”). While agreeing that SyRI operated for a legitimate purpose and with a lawful basis, the court held that the use of data in the SyRI system did not strike a ‘fair balance’ between such purpose and the interference with the right to privacy of affected individuals. Specifically, the court noted that the implementation of SyRI did not provide adequate safeguards for the protection of personal data against abusive and arbitrary practices by the operators of the system.

The lack of transparency within the SyRI system was central to the court’s conclusion. The court noted that the SyRI system, including the legislation which enabled it, did not sufficiently describe the personal data which could be collected, the purposes for which such data may be used, or the manner in which it may be processed. This opacity meant that individuals neither had sufficient notice nor adequate information in order to verify the claims of, or defend against the use of a prejudicial risk report made by the use of SyRI. Additionally, the court could also not evaluate the possibility of illegal systemic discrimination occurring within the system, as alleged by the petitioners. In conclusion, the lack of transparency and verifiability of SyRI meant that it did not meet the threshold of necessity and proportionality required by Article 8 of the ECHR.

A report by the United Nations Special Rapporteur on Extreme Poverty documents the proliferation of technologies like SyRI, which mediate the citizen-state relationship through automated decision-making. The report reveals that, behind the glamour of technologies packaged as tools for improving ‘efficiency’ and overcoming human errors, the digital welfare state is emerging as a new challenge to overcoming systemic and structural causes of poverty. Instead of addressing structural failures, the implementation of these technologies risks undermining crucial protections offered to vulnerable populations by discouraging access to welfare, as well as legitimising opaque and discriminatory government decisions.

In this context, the Hague District Court’s judgment should be considered a valuable precedent for centering human rights in the discourse on artificial intelligence and ‘data-driven’ technologies. The welfare state must be held to a higher standard of responsibility when implementing technologies that rely extensively upon the automated processing of personal data, and must ensure that the efficiencies that  digital technologies allow are not used to undermine the privacy, security and dignity of its citizens.

Urgenda, an environmental NGO, issued proceedings in 2013, as representative of 886 individuals, and in the collective interest of the Dutch population.  It claimed that constitutional norms, ECHR articles 2 (right to life), 8 (private and family rights) and 13 (right to an effective remedy), and tortious duties, interpreted consistently with international environmental law (IEL), and ‘soft law’ principles, obliged the state to reduce carbon emissions by 25% — 40% by 2020.

 The state accepted scientific consensus on anthropogenic climate change, necessitating emissions reductions to contain average temperature rises below 1.5–2°C.  However, it contested any legal obligation to achieve reductions within a given timeframe, not least because the ECHR does not oblige states to ‘provide protection against the real threat of dangerous climate change’.  The ECtHR has consistently rejected that the ECHR confers general rights to environmental protection (Kyrtatos v Greece; Fadeyeva v Russia).  IEL does not oblige states to reduce emissions by specified levels within a time-frame.  There is no universal right to a healthy environment under international human rights law.  The Netherlands’ constitution includes general duties ‘to keep the country habitable and improve the environment’ (article 21) and to promote health (article 22), which do not ground justiciable legal rights and obligations.

Nevertheless, the supreme court held that the state is responsible for excessive emissions, triggering positive emissions reduction obligations under ECHR articles 2 and 8.  Although ground-breaking, these conclusions are fundamentally premised on established ECHR principles.  First, environmental degradation from dangerous industrial activities can violate articles 2 and 8 (Őneryildiz v Turkey; López Ostra v Spain;Guerra v Italy).  Secondly, the state must ‘take appropriate steps to safeguard the lives of those within its jurisdiction’ (LCB v UK; Kiliç v Turkey).  Thirdly, a causal nexus between a ‘real and immediate threat’ to individual rights, may trigger states’ positive obligations to mitigate harm (the ‘Osman duty’: Osman v UK), including for longer-term risks (Őneryildiz v Turkey; Taşkın v Turkey).  Fourthly, positive obligations can extend to all community inhabitants (di Sarno v Italy; Cordella v Italy), if evidence shows a causal nexus between threats of harm and individual rights within the area.

The ECtHR has never held that concrete positive obligations to mitigate harm extend to an entire national population.  The Urgenda judgment, on this point, is unprecedented, and highly distinct, on the facts. Scientific consensus on climate change and its predicted impacts on low-lying Netherlands territory was sufficient evidence of ‘real and immediate threats’ to all citizens within the territorial jurisdiction.  Interpreting ECHR obligations consistently with EIL and the precautionary principle, required far-reaching emissions reductions, to mitigate against ‘tipping point’ dangers of rapid temperature rises.

The judgment will have far-reaching implications for existing and future generations, even though the ECHR itself does not protect collective, diffuse, or future rights, and restricts ECtHR standing to individual ‘victims’ (article 34).  The state accepted Urgenda’s legal standing in collective constitutional and domestic tortious claims, under Civil Code class action procedures, but challenged its standing to invoke ECHR rights, because it was not a ‘victim’.  Overruling the first instance judgment, the supreme court confirmed Dutch class action procedures do extend to ECHR claims before domestic courts; the victim test was only applicable before the ECtHR.  Thus, the judgment expands possibilities for strategic climate justice class actions before Dutch courts on human rights grounds, including, potentially, seeking damages for harm from excessive emissions.

The Urgenda judgment establishes important benchmarks for emissions reductions obligations, and interpretation of human rights norms consistently with IEL and ‘soft law’ principles.  Although specific to the Netherlands, it will undoubtedly influence similar pending claims elsewhere, notably Föreningen Greenpeace Norden v Government of Norway, Juliana v USA, Klimaatzaak v Belgium, and La Rose v HM The Queen.

In April 2018, the Dutch interest group Milieudefensie (Friends of the Earth Netherlands) informed the multinational Royal Dutch Shell by means of a letter of Shell’s liability and legal obligations in relation to climate change. Through its corporate activities and corporate strategy, Shell allegedly breached its legal duty of care by causing climate damage across the globe and undermining the ambitions of the Paris Agreement.Thus, it had to remedy the unlawful situation by aligning its corporate activities and investment decisions with global climate targets to prevent dangerous climate change. In response to this letter, Shell stated that it did not find the claims to be justified and questioned whether courts are the desirable forum to discuss global energy transition. On 5 April 2019, together with several other organizations and thousands of private individuals, Milieudefensie increased the pressure and summoned Shell. The first instance court of Den Hague will now have to assess the claims.

The claimants’ argumentation rests on the Paris Agreement. The central aim of this agreement is strengthening the global response to the threat of climate change by keeping a global temperature rise this century well below 2 degrees Celsius above pre-industrial levels, pursuing efforts to limit the temperature increase even further to 1.5 degrees Celsius. Given that goal, Shell should linearly and immediately reduce its CO₂ emissions towards a zero level in 2050. In essence, the general duty of care under Dutch law obliges Shell – as one of the biggest polluters and causers of those emissions – to contribute to preventing dangerous (consequences of) climate change. There is a growing global consensus among scientists that a global temperature rise of 2 degrees Celsius entails a huge danger for humanity. By its insufficient (and disproportionately small) efforts to prevent that danger, Shell acts wrongfully.

Particularly, the angle of wrongfully creating or preserving a dangerous situation rings a bell within Dutch climate litigation. Indeed, the famous Dutch case of Urgenda v. the Dutch State relied on a similar line of reasoning. Both the first instance and appellate courts have held that the Dutch State must reduce its emission of greenhouse gases by at least 25% by the end of 2020, compared to the level of 1990. The Urgenda case also regarded remedies such as a declaration in law and judicial orders, rather than compensation. Prevention and enforcement (of rights) thus gain importance. In that regards, the case of Milieudefensie et al. v.Shell differs from previous cases against Shell brought by San Francisco and New York in which the claimants sought compensation for climate change-related damage.

A peculiarity of the case of Milieudefensie et al. v.Shell in comparison with the case of Urgenda v. the Dutch State is that the defendant is not the state but a private entity. Although based on the same general standard of care, different questions arise because of that. The court no longer has to decide on the behaviour of a careful government but on that of a private company, thus avoiding trias politica objections. To what extent international climate agreements and human rights treaties, to which Shell is not a party as is the Dutch State, will be of influence, remains to be seen. A company cannot be expected to serve the general interest similarly as the State, but company-oriented agreements (often soft law) may prove useful, such as the UN Guiding Principles on Business and Human Rights. What is certain, is that temperature is rising both inside and outside the courtroom.

Over the past few years, various countries in the Global North have passed new legislation imposing human rights reporting requirements on companies (such as the UK Modern Slavery Act 2015 section 54), as well as mandatory human rights due diligence (such as the French Duty of Vigilance Act 2017). ‘Human rights due diligence’ is the process by which companies identify, prevent, mitigate, and account for how they address their adverse human rights impacts. It is a core concept in the UN Guiding Principles on Business and Human Rights which establish that states have a duty to protect human rights, and companies have a responsibility to respect human rights. The recent legislative developments enshrine this responsibility to respect human rights in law.

The Dutch law introduces a duty of care [zorgplicht] to prevent the supply of goods or services which have been produced using child labour. This duty is different to the duty of care in tort law in common law jurisdictions, which is a specific duty owed to a particular person. Here, it concerns a generic duty to exercise due diligence [gepaste zorgvuldigheid], which the law elaborates. The law covers companies that sell or supply goods or services to Dutch end-users, including companies registered outside the Netherlands (art. 4.1). To exercise due diligence, a company has to determine whether there is a reasonable suspicion that a product or service involves child labour. If such a suspicion exists, it has to develop and implement an action plan (5.1). The investigation must be based on sources that are ‘reasonably knowable and consultable’ (5.2). Similar to other human rights due diligence legislation, the law requires companies to produce a statement which declares that the company has conducted due diligence (4).

Several aspects make the Dutch law distinct in the wider legislative trend. First, it dictates the appointment of a regulator [toezichthouder] (art. 3), who publishes the corporate human rights due diligence statements in an online public registry (4.5). Victims, consumers, and other stakeholders cannot use the law to sue a company, but can file a complaint with the regulator (3.2) on the basis of concrete evidence of non-compliance (3.3). They can only do so after the company itself has dealt with the complaint, or if the company has not responded to the complaint six months after filing it (3.4).

Second, it is the first to introduce criminal sanctions for a failure to exercise human rights due diligence. If a company fails to produce the statement, carry out the investigation, or set up an action plan (art. 7.2a), or if the investigation or action plan are inadequate (7.2b), the regulator may first impose a (largely symbolic) fine of €4,100. In cases of repetition within five years, non-compliance with the child labour due diligence requirement becomes an economic offence under the Economic Offences Act. The company may face criminal penalties such as up to four years of imprisonment, community service, or a fine of up to €83,000.

Third, the law attempts to incorporate an existing mechanism of responsible business conduct. Critics of the law worried that binding legislation would undermine the existing model in the Netherlands for addressing complex business and human rights issues through so-called ‘covenants’ (Agreements on Responsible Business Conduct). These voluntary agreements provide a platform for cooperation between companies, and, in most cases, for dialogue between industry, government, and civil society. Supporters of the law, on the other hand, argued that voluntary covenants and binding legislation can mutually strengthen one another, and that the law codifies a minimum standard. Notably, the law indirectly includes the covenants in article 5.4, which states that the Dutch government may approve a joint action plan aimed at identifying and preventing child labour in the goods and services of the signatories, and which is developed in cooperation with NGOs, labour unions, and employer associations. This way, the law appears to change the character of the covenants from voluntary initiatives to potential regulatory instruments.

Several details of the law remain to be specified through implementing decrees [algemene maatregelen van bestuur]. Which authority will perform the role of regulator? (art. 1d) What requirements should the corporate action plan meet? (art. 5.3) Will certain companies, such as small companies, be exempted from the law? (art. 6) The effectiveness of the law will depend on how the Dutch government will elaborate these elements. The scope of the law is currently limited to child labour, but it could prompt the development of broad human rights due diligence legislation in the future.