Climate change is a concern highly prioritized by the international community. The shared interest by the international community in addressing climate change led to the successful conclusion of the Paris Agreement in 2015. States have also openly expressed their commitment in achieving Sustainable Development Goal 13: Climate Action by 2030. In this regard, Indonesia signed the Paris Agreement in 2016, expressing its commitment to maintain a global average temperature increase to ‘well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels’. Nonetheless, fulfilling such a commitment remains challenging. Signs of climate change are prominent in the archipelagic State, some facilitated by the continuous high carbon emitting activities from companies in the energy sector. Considering the direconsequences that will arise in the long-term as a result of the persisting emission of carbon, action to tackle activities contributing to climate change is greatly needed.
One of the ways to effectively control and mitigate such consequences is to call for responsibility from actors contributing to climate change through legal recourse. Climate activists as well as impacted individuals are now resorting to civil litigation, also known as climate litigation. In 2020, the United Nations Environmental Programme reported that the number of climate litigation cases nearly doubled since 2017, with 1,550 climate change cases filed in 39 countries including courts of the European Union.
Furthermore, there has been a surge in lawsuits filed to impose liability on companies. In 2017, claims were made against the RWE AG, a German multinational energy company, by a Peruvian farmer and assisted by NGO Germanwatch in the District Court of Essen. The melting of glaciers in the area and the increasing risk of a devastating flood that would impact around 50,000 people encouraged a lawsuit against RWE AG. Moreover, Indonesia is currently witnessing a climate litigation in the Asmania et al. v. Holcim case, filed against Holcim Ltd. in the Swiss District Court by four islanders of Pari Island seeking compensation from the Swiss cement giant over its carbon dioxide emissions which allegedly damaged and increased flooding in the Pari Island.
Despite being an effective tool in addressing climate crisis, climate litigation toward private entities has proven to be complicated as it may be difficult to establish the causation between the actions of the company and the impacts suffered, especially in the case where the plaintiffs claim that the effects of the defendant have contributed to climate change globally. Its nexus may be too far, considering that climate change itself occurs due to contributions from many actors and business activities emitting carbon. This is demonstrated in the Saul Luciano Lliuya v. RWE case, wherein RWE had not established any coal power plants in Peru or the rest of South America.
In civil law countries, climate change litigations have been filed against companies based on an unlawful act. Generally, unlawful acts are regulated under private law which aims to first, provide compensation to victims who suffered losses due to an injury and second, to redress a wrongful conduct that happened in the past while concurrently deterring and minimizing such a conduct from happening again.6 Establishing an unlawful act in climate litigation is evident in the Netherlands in the Milieudefensie et. al v. RDS case and most recently, in France in the Notre Affaire à Tous v. Total case. Establishing causation is indispensable as it is required to identify who will be deemed liable for the damages incurred. Hence, in the context of climate litigations, the effects of climate change must, at least to a certain extent, be a consequence of the actions of the company.
Although difficult, causality between a company’s activities and its contributions to climate change has been successfully established in the Milieudefensie et. al v. RDS case (hereinafter referred to as ‘Shell Case’). The Plaintiffs therein filed the claim based on unlawful act under Article 6:162 of the Dutch Civil Code. By relying on the obligation of due care, the Hague District Court recognized Shell’s individual partial responsibility to ‘contribute to the fight against dangerous climate change according to its ability’. As a result, the Court favored the petitions submitted by the Plaintiffs as it decided that the RDS possesses the obligation to reduce CO2 emissions by net 45% at end 2030, relative to 2019, through the Shell group’s corporate policy, which applies to the entirety of its energy portfolio and all scopes of emissions.
This research is a normative legal research. It utilizes three main approaches, namely statutory, comparative, and conceptual approaches. By equipping the statutory approach, this research assesses both the Dutch and Indonesian Civil Code to dissect the concept of ‘unlawful act’. Concurrently, it implements the comparative approach as it contrasts the two together to further comprehend the applicability of the notion of unlawful act in climate litigations. Ultimately, the use of a conceptual approach is reflected in this research’s evaluation of core legal concepts, specifically with regard to unwritten law, standard of care, and causality.
In light of the recent developments, this research will explore whether Article 1365 of the Indonesian Civil Code can be implemented to invoke responsibility to businesses whose activities are significantly contributing to climate change. This will be done by comparing Article 1365 of the Indonesian Civil Code with Article 6:162 the Dutch Civil Code and analyzing the approach utilized in the Shell Case. Moreover, it will examine two fundamental points of civil liability, namely 1) unwritten law; and 2) causality.
The full version of this research paper can be found at: https://e-journal.unair.ac.id/MI/article/view/57628/28997
Author: Iman Prihandono
