1. Causes of Action
B. Human Rights Law
6. HURDLES AND CHALLENGES
First, among the most important challenges related to human rights in corporate climate litigation, we can generally highlight: (1) the need for incorporation into domestic law (except for monist legal systems), (2) the general vertical effect, which is a huge challenge in corporate cases; (3) and the fact that a right is not absolute but qualified by a threshold to engage it and often wide margins of discretion to qualify it.
Indeed, the main prominent hurdle encountered or likely to be faced is that rights enshrined in constitutions and regional conventions impose obligations on the State but do not impose obligations on private actors. In many jurisdictions, powerful constitutional rights (see above ยง3. Relevant Definitions and Essential Elements), most notably the right to a healthy environment, can be asserted vertically against the State but not horizontally against private actors. Rather, claimants need to base their claims against corporations on alternative private law-based causes of action, such as tort law, which may then open the door to invoking constitutional rights as a supplementary tool to support their interpretation of the relevant private law. This can be seen in jurisdictions such as:
Canada, see for example the Canadian Supreme Court case RWDSU v Dolphin Delivery Ltd in which the Court unanimously held that the Charter of Rights and Freedoms does not apply to disputes between private actors, but nonetheless could be used to guide the development of the private law in a manner consistent with Charter values.
Germany, see above German Federal Constitutional Court, judgment of 11.04.2018 - 1 BvR 3080/09, in which the court held that 'Fundamental rights do not generally create direct obligations between private actors. They do, however, permeate legal relationships under private law; it is thus incumbent upon the regular courts to give effect to fundamental rights in the interpretation of ordinary law ... These effects are rooted in the decisions on constitutional values (verfassungsrechtliche Wertentscheidungen) enshrined in fundamental rights'.
With respect to regional conventions, the same hurdle applies in jurisdictions such as:
UK, see R (Friends of the Earth) v Secretary of State for Business Energy and Industrial Strategy (with respect to the UK Human Rights Act), in which the court explained that although ECHR rights could not be directly asserted against a private actor, domestic legislation had to be interpreted in line with ECHR rights and with clear and constant Strasbourg jurisprudence.
Netherlands, see above Milieudefensie v Shell explaining that the claimants could not directly invoke ECHR rights against a private actor but that nonetheless the court may 'factor in the human rights and the values they embody in its interpretation of the unwritten standard of care' in Dutch civil law.
