Soft law contribution to mitigate climate change: an analysis of the Milieudefensie case

Resumo

Climate litigation currently backs the development of international climate change law and the reaction to the phenomenon. In the analysis of the Milieudefensie case, this paper aims to analyze whether the interpretation of the United Nations Guiding Principles (UNGP) by the Hague district court contributes to Shell punishment relative to its CO2 emissions. The methodology adopted consists of the case study of the Milieudefensie case complemented by bibliographic and documentary research techniques. In the analyzed case, the aforementioned court interpreted Royal Dutch Shell (RDS) measures to identify and evaluate the adverse effects of its emissions in light of the UNGP principles that encompass the responsibility to respect human rights and the actions to accomplish this responsibility. Moreover, the court recommended companies to adopt adequate measures according to the UNGP principle that disciplines enterprises’ effective integration of findings from their impact assessments and the need to take appropriate action. Additional parameters to RDS condemnation are hard law instruments such as international human rights treaties and soft law instruments such as the SDGs. The conclusions reveal that the analyzed decision reinforces RDS responsibilities established in the UNGP, which are not legally binding. This development demonstrates that effective climate change policy hinges on substantial private action and that climate litigation contributes to overcome the current slow and arguably ineffective nature of international interstate action on the climate issue. The originality consists of the analysis of the way in which the argumentation in the Milieudefensie case hardens international soft law that disciplines corporate behavior.