In a post published on this blog in 2022, I addressed the relationship between private international law (PIL) and strategic climate change litigation, focusing on claims brought or supported by children and youth applicants. In those disputes, where plaintiffs are mostly seeking to hold States accountable for the violations of international and/or constitutional law, private international law was bound to have very little, if anything, to contribute.
However, in the same blog post, I also pointed at some developments in the “underworld” of climate change litigation, hinting to the emergence of new court strategies, whereby climate activists (not necessarily children or youth) direct their claims towards big transnational corporations, following in the footsteps of Milieudefensie et al. v. Royal Dutch Shell plc.
“Private” claims of this kind are bound to speak the language of PIL, at least in cases where a foreign element is involved.
Recent developments in the field of climate change litigation confirm this trend. The Four Islanders of Pari case borrows the ordinary tools of private law (tortious liability) in order to hold a foreign transnational corporation accountable for its overall CO2 emissions. This case is particularly interesting for two reasons. First, owing to its timing and the kind of damage alleged by the applicants, this case fits in a wider context of litigation, which is presently involving (or trying to involve) several international bodies and tribunals, thus evidencing a certain complementarity of action, or at least a commonality of end-goals, between private and public international law (A). Second, from the specific standpoint of PIL, this case differs from its predecessors (notably from Luciano Lliuya v. RWE AG) for being beyond the scope of application of EU PIL, the conflict of laws issues raised therein being governed by domestic (Swiss) PIL (B).
A. The Broader Context: the Courtroom Fight against Sea Level Rise.
It is probably not incorrect to read the Four Islanders of Pari case as one small piece of a bigger puzzle, consisting of a fully-fledged courtroom fight against sea level rise, ie one of the most immediate consequences of climate change. Unsurprisingly, this fight is presently carried out primarily by low-lying insular States and their inhabitants: owing to their specific conformation, these islands (mostly situated in the Pacific area) are particularly vulnerable to the short-term effects of climate-change on sea levels, which are exposing them to the risk of recurrent flooding, fresh water salinization and, eventually, (total or partial) disappearance by the year 2050, or sooner.
Against this backdrop, a group of small insular States (eventually supported by a group of like-minded States) have promoted, or is seeking to promote, initiatives before two major international tribunals. In October 2022, a group of States led by Vanuatu announced the preparation of a draft Resolution, intending to prompt the UN General Assembly to seek an advisory opinion from the ICJ “on the obligations of States in respect of climate change”.
The text of the Draft Resolution was circulated among all UN member States at the end of November 2022, with a view to putting it to a vote in early 2023. In parallel with these developments, on 12 December 2022, the Commission of Small Island States on Climate Change and International Law (representing Barbuda, Tuvalu and Palau) has submitted another request for an advisory Opinion to a different international tribunal, the ITLOS.
In both cases, the advisory Opinions seek to clarify the climate change-related legal obligations placed upon States by a rich body of public international law, including the UN Charter, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the UN Framework Convention on Climate Change, the Paris Agreement, the UNCLOS, and rules of general international law, such as the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment. For evident reasons, a special emphasis is placed on the protection of the marine environment, on the specific vulnerability of Small Island developing States and on the interests of future generations.
Although non-binding, such advisory Opinions may entail authoritative statements of law with legal effects (see ITLOS, Maritime Delimitation in the Indian Ocean, paras. 202-205) and carry great legal weight and moral authority, thus contributing, in their way, to the elucidation and development of international law (ICJ). They could be, in particular, a preliminary step in the quest for greater accountability of international actors vis-à-vis the protection and the restoration of a viable (marine) environment.
Besides the actions undertaken directly by States, the inhabitants of small Pacific islands have been equally active before judicial or quasi-judicial international bodies.
Among the first initiatives undertaken under the aegis of the International Covenant on Civil and Political Rights (ICCPR), there is a communication to the UN Human Rights Committee (UNCHR) filed in 2015 by a citizen of Kiribati. Claiming that climate change had turned its place of origin in an “untenable and violent environment” , which forced him and his family to migrate, the author of the Communication contested New Zealand’s decision to deny the refugee status. While unsuccessful on the merits (the UN Committee found the denial issued by New Zealand’s authorities was not clearly arbitrary and did not amount to a manifest error or a denial of justice), this initiative is still producing systemic effects for climate asylum-seekers worldwide (see, for example, a recent judgment of the Italian Court of Cassation, quoting the View adopted by the UNHRC).
More recently, a group of Islanders of the Torres Strait filed another Communication with the UNHRC, alleging the violation, by Australia, of a number of ICCPR provisions. They put forth, in particular, Australia’s failure to adopt adequate adaptation measures to protect their lives and way of life, their homes and their culture against the threats posed by sea level rise. In September 2022, the UNCHR found a violation of Article 17 (right to private and family life) and of Article 27 (protection of minorities) of the ICCPR. It ordered the respondent State to pay adequate compensation for the harm suffered by the plaintiffs and to conceive and implement effective measures to secure the communities’ continued safe existence on their respective islands, in meaningful consultations with the communities’ members.
Most interestingly for the readers of this blog, however, public international law has not been the only weapon brandished by the inhabitants of small island States in the fight against rising sea levels.
B. Quid Private International Law? The Four Islanders of Pari Case.
Within the framework of this broader effort to counter the effects of climate change, small State islanders have not neglected the “private side” of court litigation, ie the disputes between private entities before national (civil) courts.
In August 2022, four residents of the island of Pari (Indonesia) introduced a request for conciliation before the Justice of the Peace of the Canton of Zug (Switzerland). This is a preliminary step mandated by the Swiss Civil Procedure Code for pursuing a civil action (Article 198 Swiss CCP).
The claim is directed towards Holcim, a corporation established in Switzerland and specialized in cement-production activities. Holcim figures among the so-called Carbon Majors, ie the hundred or so companies that account for more than 70% of global greenhouse gas emissions since the dawn of the industrial age (see also here). More specifically, the plaintiffs are trying to establish a direct correlation between Holcim’s significant pro-rata contribution to such emissions (0.42% of global industrial CO2 emissions since 1750: source) and the adverse effects suffered by the local ecosystem on Pari Island. For these purposes, these plaintiffs are supported by a wide transnational networks of NGOs, whose alliances straddle the North-South divide [HEKS/EPER (Switzerland); ECCHR (Germany); Walhì (Indonesia)].
Reporting on this case is rather difficult, as no procedural documents have been made available to the general public yet. The analysis below is based on the information provided by the website dedicated to the case, which does not, however, provide for a comprehensive summary of the complaint. As mentioned above, this case is interesting for two main reasons: the type of relief sought by the claimants and the PIL issues raised therein.
The Claim and the Relief Sought
According to what we presently know about the case, four Indonesian claimants “are demanding justice on behalf of the island of Pari, which is facing imminent ruin, and are taking Holcim to court”. The income and subsistence of these plaintiffs is highly dependent on fishing and tourism, ie activities that are severely affected by the rise in sea levels, which has reached a 20 cm increase globally and which threatens the very existence of the island over the next 30 years (see here).
Holcim is asked, inter alia, to “provide proportional compensation for the climate-related damage the plaintiffs have already suffered in Pari Island”. The claim is therefore based, in all probability, on the general rule on civil liability, likely interpreted in the light of international human rights law. Claims of this kind, based on extra contractual liability or a general duty of care, are not new to climate change litigation against States (see, for example A Sud v Italy) or private corporations (Milieudefensie et al. v. Royal Dutch Shell plc or Luciano Lliuya v. RWE AG). However, according to the database of the Sabin Center for Climate Change Law, the Swiss case “is novel and unprecedented ” as it combines compensation (the Lliuya approach) and reduction of GHGs (the Milieudefensie approach).
In fact, in addition to the demand for compensation, the action brought by the four islanders of Pari seeks to compel Holcim to cut CO2 emissions by 43% by 2030, compared to 2019 figures (or to reduce their emission according to the recommendations of the climate science in order to limit global warming to 1.5°C) and to contribute towards adaptation measures on Pari Island. This reference to the 1.5° threshold (set by the Paris Agreement) is an obvious hint of that the case is partly based, or at least relies on, obligations defined by public international law. It thus evidences a certain “confluence” of public and private international law. This request for injunctive relief additionally serves to highlight the commonalities that exist between the Four Islanders of Pari case and the claims advanced by the litigation directed towards States in varied fora around the globe (see again this post).
The Applicable PIL Regime
While being the first case of this kind in Switzerland, the Four Islanders of Pari closely reminds of the German Luciano Lliuya v. RWE AG. Therein, a Peruvian farmer (supported by the NGO Germanwatch) is suing a German electricity company based on its estimated contribution to global industrial greenhouse gas emissions since the beginning of industrialization. These emissions, it is contended, have contributed to the melting of mountain glaciers near Huaraz, and to the correlated rise in the water level of a glacial lake located above his town. As a consequence, his property is currently threatened by floods.
There is, however, an important difference between the two cases. While Lliuya falls within the scope of application of the Brussels I bis and the Rome II Regulations, the Four Islanders of Pari will be entirely governed by the 1987 Swiss Act on PIL (SwAPIL). This vouches for some caution in assessing the translatability to the latter of the “lessons” thus far learned from the former.
The first lesson derivable from Lliuya is that establishing jurisdiction in this kind of cases is a relatively straightforward matter, based on the widely accepted principle of actor sequitur forum rei. Suing in the place of domicile of the defendant under Article 4 of the Brussels Ibis Regulation, as interpreted in Owusu, guarantees access to a (European) forum. The same conclusion seems to apply, prima facie, within the different framework of the SwAPIL. Its Article 2, which functionally corresponds to Article 4 of Regulation 1215/2012, does not enable the seized court to exercise any discretion in deciding whether or not to hear the case (see Goldwin p. 137, a contrario). Pragmatically, the fact that (economically disadvantaged) third state plaintiffs might be required to pay court fees or warranties in order to access the local forum should not be particularly problematic from the standpoint of the right to a court, in cases where litigation is supported by external funding through NGOs or by other means (eg crowdfunding).
The progression of Lliuya before German courts additionally shows that jurisdiction is particularly important as it indirectly determines the applicable procedural law, governing fundamental issues such as the admissibility of the action or the justiciability of the claim. Moreover, in cases like Lliuya or the Four Islanders of Pari, other procedural issues such as the burden of proof, the means and the standard of evidence will play a pivotal role in determining the chances of failure or of success of the action. This means that the choice of forum remains a cornerstone in the litigation strategy of climate change cross-border cases.
Concerning the applicable law, the SwAPIL does not provide for a specific conflict of law rule for environmental damage, along the lines of Article 7 Rome II. As well known, the latter sets out a policy-oriented rule of conflict empowering the person(s) seeking compensation for damage, who is given the choice between the law of the State where the event giving rise to the damage occurred and the law of the State in which the damage occured.
From the standpoint of PIL, the determination of the applicable law might indeed be the major point of contention in the Four Islanders of Pari case, in the light of the very different choice made in this respect by the Swiss legislator. Article 133 SwAPIL provides, at its 2nd paragraph, that where the parties to the dispute are not habitually resident in the same State, torts are governed by the law of the State where the tort was committed (l’État dans lequel l’acte illicite a été commis/das Recht des States…in dem die unerlaubte Handlung begangen worden ist/ il diritto dello Stato in cui l’atto è stato commesso). However, when “the result” occurred in another State, the law of such state applies if the tortfeasor should have foreseen that the result would have occurred there. (English translation provided by Dutoit, p. 595). Therefore, SwAPIL seems to contemplate the well-known alternative between place of the event giving rise to damage and place of the damage, similarly to EU PIL, but it does not confer any choice upon the alleged victim. Conversely, the foreseeability clause set out by the second part of Article 133 SwAPIL, 2nd paragraph, raises a new problem in terms of burden of proof, in relation to which Swiss legal scholarship is divided (Dutoit, p. 595-6).
Unfortunately, as the procedural documents of the Four Islanders of Pari case have not been made available online, it is impossible to properly assess the precise petitum and to determine whether, and to what extent, the tort alleged by the Islanders is Distanzdelikt, or even a ubiquitous tort. There are many factual elements that might be relevant in this respect, such as the place where Holcim is headquartered (as the place where the main decisions in terms of environmental sustainability and green policies are taken); the concrete places (likely scattered around the world) in which Holcim is undertaking its material production activities; and Indonesia, as the place where the specific damage alleged by the plaintiffs materialized (provided that this was foreseeable by Holcim). The possibility of triggering the escape clause under Article 15 SwAPIL must also be taken into account (ie. the application of the law of the State with which the case presents “a much closer” connection). It would be interesting to know whether, in concreto, the plaintiffs are pleading for the applicability of Swiss or a foreign law.
C. Conclusions and Future Trajectories
The Four Islanders of Pari case is still at its very initial stage and deserves to be monitored closely in the near future. Its very existence confirms, however, that private international law is becoming and will become increasingly important in strategic climate change litigation, when this is directed towards private companies such as the Carbon Majors. In a way, disputes of this kind may be seen as complementary to the initiatives undertaken under the aegis of public international law by particularly affected States. There is, in particular, a commonality of objectives, despite the obvious difference in both legal petita and remedies brought before national and international courts.
Another interesting lead to be followed in the future concerns the role played by PIL in cases brought by EU-based claimants against EU-based corporations, based on allegations of false or misleading advertisement. Cases of this kind, which are mushrooming throughout the world’s jurisdictions, may seem purely domestic at a first glance. However, the fact that plaintiff and defendant are, in most cases, domiciled/established in the same State does not exclude, as such, the possibility that the “affected market” may extend beyond national borders, especially where the defendant is a big transnational corporations operating worldwide.
An example of such cases might be the recent FossielVrij NL v. KLM, where a group of environmental organizations is suing (in the Netherlands) the national airline KLM, owing to its ‘Fly Responsibly’ advertisement campaign (which is based on allegedly false claims of “climate neutrality” or “CO2ZERO”).
The (unofficial English translation of the) application is regrettably very concise as concerns the reasoning on jurisdiction and (especially) applicable law. It merely states that “since both [the applicant] and KLM have their registered offices in the Netherlands, the Dutch court is competent to take cognizance of this dispute. As a result, Dutch law will also apply to the claims of Fossil Free against the defendant”.
While acknowledging, in the application, the wide reach of the Fly Responsibly campaign (here, § 179 : “The campaign will be rolled out worldwide on 13 December in a number of vital, fast-growing markets, the UK, Norway, Sweden, Germany, the US, Canada, Brazil and China”), implemented through TV ads, physical ads at Schiphol Airport, online “banner” ads on KLM websites, marketing emails and targeted ads on social media platforms (here, § 183), the application does not elaborate further on the relationship between the specific claim, the Rome II Regulation and the several options opened under its Article 6.
Cases of this kind also deserve to be closely followed by the private international lawyer.