I. Introduction
Strategic litigation has been recognised as a powerful tool used around the world to promote accountability and reform across a wide range of areas, advance diverse collective interests and shape the law beyond the resolution of individual disputes.Footnote 1 It aims to achieve systemic change by creating legal precedents, influencing policy, raising public awareness, constructing compelling narratives and testing creative legal arguments. Its success depends on several enabling conditions: the availability of legal avenues for collective redress, a supportive political and judicial environment, active civil society engagement and adequate financial resources.Footnote 2 This article employs strategic litigation as a conceptual framework to explore how courts shape the development of business and human rights (BHR) norms.Footnote 3
As a distinct field of scholarship and practice, BHR has undergone significant evolution.Footnote 4 While its conceptual and analytical contours continue to develop,Footnote 5 at the core of the discourse are the legal dimensions of corporate responsibility to respect human rights and the pursuit of access to justice for rightsholders affected by adverse business activities.Footnote 6 Over the decades, strategic BHR litigation has emerged as a prominent pathway in this ongoing ‘quest for accountability’.Footnote 7 Although BHR litigation remains fragmented and highly context-dependent,Footnote 8 it increasingly reflects efforts to translate soft standards, primarily the UN Guiding Principles on Business and Human Rights (UNGPs),Footnote 9 into enforceable legal duties. As Robert McCorquodale insightfully described it, the litigation landscape is ‘muddy, with some shafts of sunlight’,Footnote 10 capturing both the uncertainty and the transformative potential of these efforts.
One highly visible category of strategic BHR litigation involves proceedings brought against transnational corporations (TNCs) in their home jurisdictions, often in Western countries, over the human rights and environmental impacts of their global operations. In many such cases, lawyers have creatively relied on the notion that corporations owe a duty of care under private law. While these claims are framed as domestic tort actions between private parties and typically seek compensation or injunctive relief for individuals or communities affected by corporate misconduct abroad, they often pursue a broader set of objectives. Transnational BHR claims have attracted extensive scholarly attention, leading to diverse assessments of the use of private law in the Global North courts to adjudicate human rights violations worldwide.Footnote 11 This article does not seek to revisit those debates in-depth, nor does it view strategic litigation as the preferred tool of legal mobilisation. Rather, it acknowledges that proceedings against TNCs in Western jurisdictions represent just one of the regulatory avenues with its own advantages and limitations.Footnote 12
To explore how strategic litigation can facilitate the normative evolution of corporate responsibility, the analysis turns to two case studies: (i) the development of the duty of care in supply chain relationships under English law, and (ii) the recognition of corporate climate responsibility under Dutch law. The first case study examines Josiya v British American Tobacco Plc Footnote 13 and Limbu v Dyson,Footnote 14 which highlight how English courts are approaching the liability of lead purchasing companies for harms arising within global supply chains.Footnote 15 The second focuses on Milieudefensie v Shell,Footnote 16 where the Dutch courts explicitly relied on soft law instruments to define the scope of corporate climate obligations. These case studies were selected for their transnational dimension, addressing a critical accountability gap that arises from the mismatch between the global reach of business operations and the primarily domestic nature of legal remedies. They also reflect legal innovation, where litigants have pushed the boundaries of traditional legal doctrines to articulate novel corporate duties. Notably, tort law’s inherent flexibility makes it a key regulatory vehicle in this context: it allows for translation of human rights violations in civil liability terms and facilitates judicial engagement with evolving social standards of care.Footnote 17
The article’s central argument is that despite significant legal, political and financial challenges, strategic BHR litigation plays an important role in hardening soft law, reflecting the article’s central theme that such litigation should be seen as a marathon, not a sprint.Footnote 18 Because its effects often unfold gradually over time, the impacts of strategic litigation are inherently difficult to measure. This analysis is guided by the impact framework developed by Ebony Birchall, Surya Deva and Justine Nolan, which identifies a range of both positive and negative outcomes associated with BHR litigation.Footnote 19 Rather than attempting a comprehensive evaluation of all possible effects, this article focuses specifically on one of the positive impacts highlighted in their framework: the potential of strategic BHR litigation to shape laws and policies by developing responsible business standards and/or clarifying legal standards to drive corporate accountability. The guiding research question is: how – and to what extent – do the selected cases contribute to shaping the scope and content of corporate responsibility to respect human rights? Against this background, Part II first outlines the complexity of the BHR normative framework. Parts III and IV then analyse the English and Dutch case law to explore how courts are progressively translating social expectations into legal duties. Part V offers a brief conclusion.
II. Defining the Indefinable: The BHR Normative Framework
Defining the scope of the BHR normative framework is inherently challenging. The field encompasses a broad set of instruments at the intersection of human rights and business, cleverly described as a ‘galaxy of norms’ which includes ‘multiple forms of guidance with differing legal effects, formulated by both public and private entities’.Footnote 20 Another term used by scholars is ‘norm cascade’, which also well reflects the range of implementation and enforcement mechanisms operating at different levels.Footnote 21 A central focus of the field’s normative debates has been the evolution from voluntary corporate social responsibility to legally binding corporate accountability for human rights violations.Footnote 22 The adoption of the UNGPs did not resolve but rather re-enforced the argument on whether regulation should be pursued through soft or hard law.Footnote 23
The advantages and limitations of the UNGPs continue to be debated.Footnote 24 At the same time, they are widely recognised as a global standard for preventing and addressing the risk of adverse impacts on human rights involving business activity. For instance, a review of scholarly articles published in the last five issues of the Business and Human Rights Journal reveals the continued relevance of the UNGPs for academic discussions.Footnote 25 Out of 24 articles, 10 explicitly reference the UNGPs in their title or abstract, while 19 engage with them in the text.Footnote 26 In the words of Johannes Van Loon, the UNGPs contribute to a ‘new global normativity’, providing a ‘background’ for further developments, including BHR litigation.Footnote 27
The UNGPs are grounded on the notion of corporate responsibility to respect human rights. This responsibility is articulated in Principle 11, the first of five fundamental principles directed at businesses.Footnote 28 The commentary further clarifies that this responsibility constitutes a ‘global standard of expected conduct for all business enterprises wherever they operate’.Footnote 29 Corporate responsibility to respect human rights is not a legal duty but is instead ‘rooted in a transnational social norm’ and ‘serves to meet a company’s social license to operate, not its legal license’.Footnote 30 Principle 11 frames it expansively and requires businesses both to avoid the infringement on the human rights of others and address adverse human rights impacts with which they are involved. The UNGPs do not prescribe a specific standard of conduct, rather highlighting that (i) businesses are required to take adequate measures for the prevention, mitigation and, where appropriate, remediation of adverse human rights impacts; and (ii) corporate responsibility spreads throughout businesses’ operations.Footnote 31 Sara Seck concludes that corporate responsibility to respect human rights, as articulated in Principle 11 of the UNGPs, has become increasingly accepted as a ‘social norm with legal implication’, but ‘there remains room for its continued evolution in the future’.Footnote 32
In recent years, mandatory human rights due diligence (HRDD) legislation has gained traction, contributing to the hardening of soft law and the gradual transformation of corporate responsibility to respect human rights into a legal duty. While increased regulatory action by states has been welcome, critics of HRDD argued that, as a standalone tool, it is insufficient to address power asymmetries between rightsholders and corporations.Footnote 33 One key debate concerns whether HRDD should be understood as a standard of conduct focused on reasonable and appropriate efforts to prevent harm or as a standard of outcome, which would hold companies accountable for actual human rights impacts. The prevailing interpretation in the UNGPs treats HRDD as a standard of conduct, though some contend this risks allowing procedural compliance and a tick-box culture instead of guaranteeing specific, measurable outcomes.Footnote 34 It is increasingly evident that a meaningful normative shift in the BHR framework requires broader regulatory reforms, including in the fields of corporate law, trade and investment treaties and international human rights law.Footnote 35
Where does this leave us for this article? The BHR normative framework remains highly fragmented, with ongoing controversy over how corporate responsibility to respect human rights is translated into domestic legislation. In parallel with these processes, strategic BHR litigation is unfolding in different jurisdictions, leading to domestic judicialization of human rights within the BHR field.Footnote 36 While most cases are brought under private law, such as tort law, they frequently engage with broader regulatory and normative questions. Courts are increasingly called upon to interpret international human rights standards or determine the scope of corporate obligations in relation to systemic harms. This signals a growing recognition that business-related human rights issues often transcend traditional legal categories. Corporate human rights violations are no longer seen solely as matters of private wrongdoing but increasingly as issues implicating public interests. The next two sections will further explore how national courts in the UK and the Netherlands are confronted with the challenge of identifying corporate legal duties at the intersection of human rights and business operations.
III. Supply Chain Liability Cases in the UK
A. Extending the Duty of Care: From Parent Companies to Lead Purchasing Companies
The human rights obligations of TNCs have always been an important focus of the BHR field. Early efforts to develop international codes of conduct, beginning in the 1970s, were largely unsuccessful, resulting in a governance gap in addressing the negative impacts of cross-border business operations.Footnote 37 In response, attention increasingly turned to domestic remedies. In the UK, three pioneering cases were initiated in the early 1990s against RTZ (now Rio Tinto), Thor Chemicals Holdings and Cape.Footnote 38 These cases involved claims against English-based parent companies for harm arising from the operations of their foreign subsidiaries. As Richard Meeran, the claimants’ lawyer, explained, the innovative legal strategy centred on reframing the issue: rather than piercing the corporate veil, the claims alleged that the parent companies themselves had breached a duty of care through their management of group operations and oversight of subsidiaries.Footnote 39 This use of tort law allowed claimants, who were subsidiary’s employees or community members with no direct legal nexus to the parent company, to challenge the structural limits of corporate law and seek accountability from a legal entity at the top of the corporate group. In this sense, these early cases were strategic: they tested new legal ground and set important precedents for future transnational litigation.
Reflecting on this initial wave of litigation, Meeran shared that the approach was initially discussed with a ‘senior Queen’s Counsel and a retired appeal court judge, both of whom agreed that it was an interesting and novel idea that would never succeed’.Footnote 40 Their sceptical prediction, however, did not materialise. Lubbe v Cape, an asbestos case concerning harm to South African workers and communities, reached the House of Lords.Footnote 41 While the judgment concerned the issue of jurisdiction of the English courts to hear the case, the House of Lords made an important observation: resolving parent company liability would likely require ‘an inquiry into what part the defendant played in controlling the operations of the group […]’.Footnote 42 Unsurprisingly, claimants’ lawyers took note of this point, and a series of cases against British multinationals followed in the years to come.Footnote 43
The litigation journey has been far from straightforward, marked by both triumphs and setbacks. An important victory came in Chandler v Cape, where the Court of Appeal, in a compelling decision by Lady Arden, established that the English law might, in appropriate circumstances, impose responsibility on a parent company for the health and safety of the subsidiary’s employees.Footnote 44 At the same time, AAA v Unilever and Kalma v African Minerals made it clear that a breach of a parent company’s duty of care is less likely to be found if the claimants’ damages resulted from the unlawful acts of third parties, including police, security providers or armed criminals.Footnote 45
To some extent, a culmination point was reached in 2019 with the UK Supreme Court’s decision in Lungowe v Vedanta,Footnote 46 a case about the alleged liability of the English-domiciled parent company for environmental pollution caused by the mining operations of its Zambian subsidiary. While the Supreme Court’s judgment primarily concerned the issue of jurisdiction, it also contained a few ground-breaking findings on the scope of parent company liability under English law. The Supreme Court confirmed that a parent company’s high level of supervision of the subsidiary’s relevant operations (e.g., those that allegedly led to the claimants’ injuries) is likely to give rise to a duty of care under English law.Footnote 47 The supervisory spectrum remains broad. Under Vedanta, parent company liability could arise through one of four ‘routes’: (i) by taking over the management or joint management of the relevant activity of the subsidiary; (ii) by providing defective advice and/or promulgating defective group-wide policies which the subsidiary implemented; (iii) by promulgating group-wide policies and taking active steps to ensure their implementation by the subsidiary; and/or (iv) by holding out that it exercises a particular degree of supervision and control of the subsidiary.Footnote 48 In 2021, the UK Supreme Court revisited the question of the parent company liability in Okpabi v Shell, a case which concerned environmental damage caused by the oil spills in Nigeria. Once again, the Court challenged the notion of a strict corporate separation of the parent company from its subsidiaries by distinguishing de jure control from other forms of the parent company’s involvement.Footnote 49
Notably, Vedanta and Okpabi did not reference the UNGPs, despite their growing prominence in the BHR field and persuasive efforts by civil society organisations (CSOs) through submissions to the UK Supreme Court to ground such cases in international soft law.Footnote 50 Nevertheless, the argument was not addressed in the final judgments. This omission may reflect a strategic choice by the claimants’ legal team to keep the case firmly within the boundaries of domestic tort law. As Meeran has noted, ‘claimants opt for the simplest route to success’,Footnote 51 which under English law was offered by the common law of negligence. Despite this framing, however, there is a strong trend to consider tort litigation against TNCs ‘as part of a growing body of [BHR] litigation, even if the actual causes of action may be named differently’.Footnote 52
The implications of Vedanta and Okpabi are far-reaching.Footnote 53 One key takeaway is that the UK Supreme Court explicitly kept the circumstances under which a parent company can be held liable broad rather than confining liability to narrowly defined categories. Instead, the judgments emphasise that establishing a parent company’s duty of care is highly fact-sensitive and largely depends on the specific circumstances of each, including the nature, scope and extent of its involvement in the subsidiary’s activities. Given the diverse corporate and managerial structures of TNCs,Footnote 54 the parent company’s role in the oversight of the group’s activities will also vary significantly.
This is an important conclusion because broadening the scope of parental oversight beyond strict control opens the door to supply chain liability.Footnote 55 The problem of modern slavery in global supply chains has drawn considerable attention from policymakers, civil society and businesses.Footnote 56 Research suggests that outsourcing along the supply chain is one of the root causes facilitating exploitative and dangerous working conditions, such as forced labour.Footnote 57 Unlike parent companies, lead purchasing companies are not linked to their suppliers through direct or indirect shareholding in the same way as parent companies linked to the subsidiaries in corporate groups, making liability more complex. This complexity is further increased by the involvement of subcontractors, which adds additional layers to the contractual chain connecting producers to retailers. However, lead purchasing companies often exercise a certain level of managerial control over independent contractors in the whole supply chain by requiring suppliers to adhere to the purchaser’s internal procurement practices supported by training and social auditing. As a result of these dynamics, scholars referred to lead purchasing companies as ‘chain captains’.Footnote 58 More importantly, such involvement with particular aspects of a supplier’s activities bears similarities with the parent company’s implementation of group-wide policies and, following Vedanta and Okpabi, led to the argument that a lead purchasing company could also be held liable for a breach of the duty of care.Footnote 59 Whether this analogy is sufficient to justify a legal extension remains an open question, and it is possible that English courts may, in future, seek to draw firmer distinctions between subsidiaries and suppliers. Yet, it is precisely this legal uncertainty that strategic litigation seeks to test.
B. Josiya v British American Tobacco PLC
The first English supply chain liability case is Josiya v British American Tobacco PLC, a class action brought by 7,263 Malawian tobacco farmers, including over 3,000 children.Footnote 60 The claimants have filed tort and unjust enrichment claims against several companies in the British American Tobacco and Imperial Tobacco groups (BAT and IT Groups), alleging unlawful, exploitative and dangerous conditions on the tobacco farms from which corporate defendants acquire tobacco for further manufacturing of commercial tobacco products such as cigarettes. The alleged violations include the widespread use of unlawful child labour, unlawful forced labour and the systematic exposure of vulnerable and impoverished adults and children to extremely hazardous working conditions with minimal protection against industrial accidents, injuries and diseases. The defendants sought to strike out the claims, arguing that they lacked reasonable grounds and/or constituted an abuse of process. However, in 2021, the High Court rejected their application, allowing the case to proceed.
The Josiya case highlights the complexity of the tobacco supply chains, which involve many processes, products and actors. The claimants had no direct relationship with the BAT and IT Groups. Instead, they worked on the farms operated by the so-called contract farmers, who in turn sold the tobacco crops grown by the claimants to the leaf buyers, who then processed the tobacco and sold it to various customers, including the BAT and IT Groups.Footnote 61 Consequently, the claimants did not have direct evidence that linked the defendants with the tobacco crops grown by them. This problem, referred to in the judgment as a ‘nexus issue’, posed a significant challenge for causation.Footnote 62 To overcome it, claimants relied on statistical analysis that, given the volume of tobacco purchased by the BAT and IT Groups from particular leaf buyers who sold the claimants’ crops, it is more likely than not that the defendants acquired tobacco grown by each of the claimants during one or more of the tobacco growing seasons relevant to the claim.Footnote 63 In rejecting the defendants’ application to strike out the case, the court acknowledged that the lack of evidential basis did not constitute a fundamental flaw of the claimants’ pleadings. It was sufficient that claimants have a firm belief in the truth of the nexus allegation and, importantly, there was ‘a clear pathway to be seen for the claimants’ tobacco leaves to end up in the hands of the defendants’.Footnote 64 Accordingly, the nexus allegation was not wholly speculative, and that, accordingly, did not amount to the abuse of process.
While the judgment is primarily concerned with the procedural requirements governing the court’s power to strike out claims under English law, there are some lessons for BHR scholars and practitioners. The Josiya case tests how supply chain relationships can be framed in legal liability terms. Although the ultimate success of the claim remains uncertain,Footnote 65 the case’s survival through the preliminary procedural challenge is a noteworthy development. It illustrates the difficulties that claimants in similar cases are likely to face, particularly in substantiating their claims. It highlights the crucial issue of disclosure in BHR litigation, where claimants often lack direct documentary evidence of the defendant’s business operations. A significant body of research indicated the burden of proof as an obstacle in determining the viability of a case.Footnote 66 Importantly, the court’s willingness to allow the Josiya case to proceed without requiring claimants to produce evidence beyond their possession is noteworthy.
C. Limbu v Dyson Technology Ltd
The second supply chain liability case in the English courts is Limbu v Dyson Technology Ltd, which concerned allegations of forced labour and dangerous conditions at Malaysian factories which manufactured Dyson-branded products.Footnote 67 The proceedings were commenced by the migrant workers from Nepal and Bangladesh in May 2022, who claimed they were subjected to forced labour and highly exploitative and abusive conditions while working at a factory operated by a local company in Malaysia. The defendants were three companies in the Dyson corporate group, two domiciled in England and one in Malaysia. The claimants argued that the Dyson group exercised a high degree of control over the manufacturing operations and working conditions at the factory facilities and promulgated mandatory ethical and employment policies and standards in Dyson’s supply chain.
On 19 October 2023, the English High Court declined jurisdiction on forum non conveniens grounds, concluding that Malaysia was the more appropriate forum for the claims to be heard.Footnote 68 The court determined that Malaysia was ‘clearly and distinctly more appropriate’ or, in other words, the ‘centre of gravity’ in the case.Footnote 69 The claimants advanced several arguments to demonstrate that there is a real risk of them not obtaining substantial justice in Malaysia, relying on systemic barriers to justice for migrant workers and financial constraints.Footnote 70 However, the court did not find cogent evidence to support those claims.Footnote 71 Additionally, the Dyson defendants provided undertakings to submit to the jurisdiction of the Malaysian courts and to cover certain claimants’ costs necessary to conduct the trial in Malaysia. These factors ultimately influenced the court’s decision.Footnote 72
The High Court’s judgment has been met with scepticism, as it did not offer particularly persuasive reasoning.Footnote 73 Perhaps unsurprisingly, the decision has been appealed. On 13 December 2024, the Court of Appeal overturned the High Court’s decision, identifying several errors of principle.Footnote 74 Four of these errors are particularly relevant to the ongoing discussion. First, the High Court failed to give sufficient weight to the important connection between two of the Dyson defendants and their domicile in England.Footnote 75 Second, it overlooked the fact that the real dispute between the parties – and hence the focus of the trial – primarily concerned the role and acts of English-domiciled defendants in England.Footnote 76 Third, the High Court failed to consider that the defendants’ legal defence would be coordinated from England on behalf of both the English and foreign defendants.Footnote 77 Finally, the High Court was wrong to conclude that claimants would be able to secure financial resources to pursue their case in Malaysia. The Court of Appeal found that the financial undertakings offered by the Dyson group were ‘unprecedented’ and would create a clear conflict of interest, effectively allowing Dyson to have control over what could be funded.Footnote 78
The Court of Appeal ruling in Dyson is the first instance in which the underlying nature of a BHR claim was explicitly recognised for jurisdictional purposes and the determination of an appropriate forum.Footnote 79 Domestic courts tend to view cases involving TNCs solely through the lens of events that occurred in the host state.Footnote 80 The Court of Appeal signals a shift away from this approach. Transnational tort cases should be assessed by the courts in their entirety, taking into consideration both the local and foreign aspects of the group activities.
It is problematic to frame the case as being solely about the misconduct of a subsidiary or supplier in the host state. Such an approach simply does not match the organisational structure and economic reality of TNCs. In this context, the Court of Appeal’s willingness to engage with the connecting factors linking the case to England is a positive development.Footnote 81 The allegations against Dyson primarily concern a breach of duty of care by a lead purchasing company, with the alleged failings originating in England. The case raises issues of management oversight from England, where most of the relevant documentary evidence is also located. In May 2025, the UK Supreme Court refused Dyson’s application for permission to appeal a Court of Appeal ruling, thereby allowing substantive claims to proceed to trial in the English courts.Footnote 82
D. Implications and Takeaways
The Josiya and Dyson cases take the Vedanta and Okpabi framework a step further by arguably extending parent company liability principles to third-party suppliers. This development opens the door to analysing the extent of oversight exercised by English-based lead purchasing companies over the living and working conditions of workers in their overseas supply chains. Judicial recognition of supply chain liability in appropriate circumstances can help ensure that lead purchasing companies internalise social harms that were reasonably foreseeable to them and that they had sufficient control to prevent. These cases reaffirm that TNCs operate through various structures that extend beyond traditional corporate groups. Consequently, the BHR instruments should encompass not only corporate groups but also contractual networks, which – though linked through contractual relationships or repeated transactions – can still reveal a significant degree of integration even in the absence of common ownership.
These cases represent a few normative advancements in the concept of corporate responsibility to respect human rights. They also illustrate how strategic litigation, even when procedurally complex and uncertain, can help shape legal standards, a positive impact highlighted in the Birchall, Deva and Nolan framework.Footnote 83 First, the courts’ reluctance to dismiss supply chain liability claims at an early stage suggests at least a willingness to recognise such claims within an evolving duty of care doctrine. Second, the cases expose a fundamental imbalance between vulnerable claimants and well-resourced defendants, who possess the crucial documentary evidence needed to substantiate claims. This disparity in resources has a direct impact on claimants’ ability to litigate effectively, reinforcing broader concerns about access to justice in BHR litigation. The findings of the English courts further contribute to the growing evidence base supporting the need for continued reforms in this field. Finally, Josiya and Dyson add to a deeper understanding of supply chain liability patterns and instances of modern slavery within British supply chains. This issue has gained renewed attention, particularly following the publication of the UK House of Lords Select Committee’s report on 16 October 2024, which reviewed the UK Modern Slavery Act 2015.Footnote 84 The report concluded that the UK has ‘fallen behind’ in adopting HRDD legislation. Instances of supply chain litigation in English courts further support the urgent need for a stronger legislative response.
IV. Corporate Climate Responsibility: Lessons from Milieudefensie v Shell in the Netherlands
A. Climate Change as a Business and Human Rights Issue
In February 2024, UN Secretary-General António Guterres described the climate crisis as ‘the defining challenge of our time’.Footnote 85 Historically, environmental activists and human rights lawyers have pressured states to uphold their national and international commitments, including under the 2015 Paris Agreement. More recently, growing attention has turned to the role of businesses in addressing climate change, driven by advancements in climate attribution science. A well-known example of progressive research is Richard Heede’s Carbon Majors Study, which quantified the cumulative emissions of 90 of the world’s largest carbon producers from 1854 to 2010.Footnote 86 An outstanding question, though, remains: how to integrate scientific data into the legal frameworks? As one of the responses, corporate climate litigation has evolved at a fast pace, spanning across different legal fields and employing innovative arguments.Footnote 87
In light of these developments, scholars and practitioners have started to explore the relevance of the BHR framework in the context of climate change.Footnote 88 The UNGPs do not explicitly address climate change. However, the UN Working Group on Business and Human Rights has confirmed that ‘the [UNGPs] provide useful and valuable guidance to States and business enterprises to deal with the impacts of climate change on human rights’.Footnote 89 Chiara Macchi cogently made the case for a ‘holistic’ approach to HRDD as defined in the UNGPs, arguing that the ‘relevant standard of conduct must be interpreted in the light of mutually reinforcing principles of environmental law, climate law and human rights law’.Footnote 90 At the same time, Surya Deva has encouraged to appreciate how climate change due diligence might be different from HRDD.Footnote 91 He argues that the nature of climate harm, being systemic, collective, long-term and often affecting future generations, poses distinct challenges for due diligence processes and procedures.
Indeed, climate change should not be viewed merely as another issue on the business risk register. It fundamentally reshapes the social and environmental context in which companies operate. As climate impacts intensify, corporate activities previously seen as routine, such as water usage, may result in serious human rights consequences. In this evolving context, two elements of the UNGPs become especially salient. First, companies are expected to engage meaningfully with stakeholders affected by climate-related risks, ensuring their perspectives shape decision-making. Second, the UNGPs emphasise that companies should prioritise action based on the severity of harm to people, not just risk to business.
Fragmented yet significant developments further illustrate how climate change is taking shape as a BHR issue. In 2022, the Philippines Human Rights Commission released the results of a seven-year investigation into the impacts of climate change on the Philippines and the duty of states and private actors to address ‘the increasing frequency and severity of natural disasters’.Footnote 92 The final report engaged closely with the UNGPs, concluding that the ‘Carbon Majors have the corporate responsibility to undertake HRDD and provide remediation’.Footnote 93 In 2023, the OECD launched an updated version of the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (OECD Guidelines).Footnote 94 Significantly, the Guidelines explicitly identified climate change as a critical environmental impact that multinationals should address by conducting risk-based due diligence. However, the absence of a clear and definite link between human rights and environmental due diligence in the 2023 update of the OECD Guidelines represents a missed opportunity.Footnote 95
Meanwhile, scholarly research continues to highlight the close relationship between human rights and the environment and the prominence of climate change in this discourse.Footnote 96 More importantly, in its landmark advisory opinion on ‘climate emergency and human rights’ issued on 3 July 2025, the Inter-American Court of Human Rights (IACtHR) recognised that not only states but also companies bear responsibilities with respect to climate change and its human rights impacts.Footnote 97 While the opinion focuses on state obligations, it establishes clear expectations for how states must regulate corporate conduct. The Court emphasised that states have a duty to establish and implement regulatory frameworks to prevent corporate activities from causing or contributing to climate-related human rights violations.Footnote 98 This includes requiring companies to (i) take effective measures to combat climate change and related human rights impacts; (ii) conduct human rights and climate due diligence across their entire value chains; (iii) disclose greenhouse gas emissions (including those of state-owned enterprises); and (iv) take concrete steps to reduce emissions.Footnote 99 The Court also called for the adoption of standards to curb greenwashing and undue corporate influence in political and regulatory processes and support the actions of human rights defenders.Footnote 100 Importantly, it recognised that corporate obligations should be proportionate to their contribution to the climate crisis: companies with higher emissions (particularly those in sectors such as fossil fuels, cement and agro-industry) bear greater responsibilities.Footnote 101 These findings, while rooted in the context of the Organisation of American States, mark a significant step in articulating corporate accountability for climate harms under international human rights law.
Following the IACtHR’s advisory opinion, the International Court of Justice (ICJ) also in July 2025 issued an advisory opinion clarifying states’ obligations under international law in respect of climate change.Footnote 102 The ICJ held that a state’s failure to take appropriate action to protect the climate system from greenhouse gas (GHG) emissions, including through fossil fuel production, fossil fuel consumption, licensing for fossil fuel exploration, or subsidising fossil fuels, may constitute an internationally wrongful act attributable to that state.Footnote 103 Moreover, the Court recognised that states have obligations to exercise due diligence and enact regulatory and legislative measures to limit emissions, including those caused by private actors under their jurisdiction.Footnote 104 The ICJ did not go as far as explicitly referencing the UNGPs, as the IACtHR did. Nevertheless, the ICJ’s findings carry meaningful implications for the BHR field.Footnote 105 More broadly, they reinforce arguments that norms and legal obligations related to climate change are not purely political or aspirational, but increasingly juridical.
B. Milieudefensie v Shell
One of the most prominent corporate climate cases is Milieudefensie v Shell in the Netherlands, particularly because the Dutch courts explicitly relied on the UNGPs in their reasoning. The case was launched in 2019 by seven CSOs and 17,379 individuals against Royal Dutch Shell (Shell), the parent company of a global energy and petrochemical group. The claimants alleged that Shell breached a duty of care under Dutch law due to its contributions to climate change. Their argument was based on Article 6:162 of the Dutch Civil Code, a general provision on extracontractual liability for wrongful acts (e.g., torts). Under Dutch law, ‘wrongfulness’ is an open norm and can be established through an infringement of rights, a breach of statutory obligations or a violation of unwritten social standards.Footnote 106 What made the case particularly strategic was the novel legal framing: for the first time, a private law duty of care was invoked to hold a corporation directly liable for its role in the climate crisis. On 26 May 2021, the District Court of The Hague ordered Shell to reduce the CO2 (e.g., carbon dioxide) emissions resulting from its global operations by at least 45% by 2030, compared with 2019.Footnote 107 The ruling was met with global excitement, though some scholars expressed scepticism regarding the Court’s interpretation of Shell’s duty of climate care.Footnote 108 On 12 November 2024, the Court of Appeal overturned the District Court’s decision.Footnote 109
The impact of the Court of Appeal’s judgment can only be fully appreciated through a nuanced analysis of its reasoning. The most significant implication is that the Court definitively affirmed that businesses ‘have an obligation to limit CO2 emissions in order to counter dangerous climate change, even if this obligation is not explicitly laid down in (public law) regulations of the countries in which the company operates)’.Footnote 110 To reach this conclusion, the Court first unequivocally reaffirmed that protection from climate change is a human right. It then reinforced the principle of shared responsibility between states and businesses in addressing climate change.Footnote 111 As a next step, the Court relied on the indirect horizontal effect of human rights under Dutch law and interpreted corporate responsibility to take measures to counter climate change by referencing the UNGPs, OECD Guidelines, as well as a number of other soft law instruments.Footnote 112 While acknowledging their voluntary nature, the Court strengthened its conclusion by also noting that human rights treaty provisions, including Articles 2 and 8 of the European Convention on Human Rights, can also have an impact on private relationships and ‘give substance’ to the social standard of care.Footnote 113
While the Court of Appeal established a general legal obligation for businesses to reduce CO2 emissions to combat climate change, it refrained from recognising a more specific obligation to achieve the 45% reduction target by 2030, as requested by the claimants. The Court found it persuasive that Shell already had concrete plans to reduce its Scope 1 and 2 emissions – those resulting from its own operations and energy use – and had taken measures to implement them.Footnote 114 Regarding Scope 3 emissions, which arise from the use of Shell’s products by end customers, the Court determined that there was insufficient scientific consensus on a specific reduction target that would justify an order by the court against a specific company.Footnote 115 Ultimately, the content and the scope of corporate responsibility to address climate change may vary from one company to another.Footnote 116
C. Implications and Takeaways
The Court of Appeal’s ruling in the Milieudefensie case contains important lessons regarding climate change litigation. On the one hand, the Court explicitly recognised that protection from climate change is a human right, which places the decision in line with the trends in both domestic and international case law.Footnote 117 On the other hand, the Court of Appeal’s reasoning raises concerns about the appropriate role of courts in corporate climate litigation, particularly regarding the types of remedies they can order. Laurien Nijenhuis fairly contends that ‘[a] challenging feature of many climate change cases is that judges are asked to set rules for future scenarios’.Footnote 118 The Court of Appeal’s ruling highlights the challenges courts face in making policy decisions, such as imposing specific emissions reduction targets and in assessing and interpreting complex scientific data, which is rapidly evolving.
There is also an important takeaway for the scope of this article and the research question posed in the introduction: Does the Court of Appeal’s ruling in the Milieudefensie case have a normative impact on the BHR field? The answer must be yes. Climate change as an issue of law remains a relatively new and unprecedented phenomenon. In particular, the nature, scope and source of corporate climate duties are far from clear.Footnote 119 The Court of Appeal’s reliance on the UNGPs to define the scope of the social standard of care reinforces the relevance of corporate responsibility to respect human rights in the context of climate change, directly aligning with one of the positive impacts identified in the Birchall, Deva and Nolan framework.Footnote 120
What are the lessons to be learnt? First, the ruling affirms that corporate climate responsibility exists independently of state obligations and is grounded in human rights law. Second, corporate responsibility to respect human rights under the UNGPs and OECD Guidelines includes an obligation to limit CO2 emissions in order to counter dangerous climate change even without explicit regulatory provisions under public law. Third, these obligations primarily apply to companies like Shell, which ‘contribute significantly to the climate problem and have it within their power to contribute to combating it’.Footnote 121 The Court of Appeal, however, did not go further by also establishing that high-emitting businesses must also remedy climate-related harms. In February 2025, Milieudefensie announced its intention to appeal to the Dutch Supreme Court, seeking a specific emissions reduction target.Footnote 122
Nevertheless, incorporating climate-related obligations into corporate responsibility to respect human rights opens a conversation about the effective design of HRDD processes. The Court of Appeal explicitly referenced the EU Corporate Sustainability Due Diligence Directive, signalling awareness of the expanded corporate human rights obligations. That said, the interplay between climate change, HRDD and liability requires further scholarly examination.
Undoubtedly, the Court of Appeal judgment in the Milieudefensie case will be carefully examined by environmental activists, human rights practitioners and CSOs involved in litigation. Two observations merit further discussion. First, the Milieudefensie case is essentially a Dutch case, and not every Court of Appeal’s statement can be directly transposed into other legal systems. For instance, the Court’s reliance on the soft law principles to define the breach of a private duty is rather unique and may not carry the same weight in other jurisdictions. As seen in Part III, the English courts tend to approach corporate duties of care purely within the contours of tort law. Nevertheless, the case serves as an inspiration for strategic climate litigation globally. It offers a normative framework and a legal toolbox that can be adapted to fit the doctrinal and procedural features of other jurisdictions. Several Milieudefensie-type cases, which continue to test the role of national courts in dealing with the climate crisis, have already been initiated in other jurisdictions.Footnote 123
The second point relates to the Court of Appeal’s remarks on new fossil fuel investments by oil and gas companies.Footnote 124 The Court observed that such investments may be incompatible with the goals of energy transition. However, the Court did not rule on whether these investments violated Shell’s social standard of care, as the claimants had not explicitly raised this issue. Nevertheless, the Court’s decision to address this matter in its final judgment in obiter comments opens the door for new litigation strategies.Footnote 125 In May 2025, Milieudefensie launched a new legal action against Shell, specifically targeting the company’s plans to develop 700 new oil and gas projects.Footnote 126 This development illustrates the iterative nature of strategic BHR litigation, where claimants build on evolving jurisprudence to challenge corporate conduct and push the boundaries of legal accountability.
V. Conclusion
This article examined how strategic litigation contributes to the normative development of corporate responsibility to respect human rights, focusing on two case studies: supply chain liability claims in the English courts and corporate climate litigation in the Netherlands. These cases highlight how domestic courts are increasingly engaging with claims that test and expand the corporate duty of care under private law, both in relation to labour conditions within global supply chains and contributions to the climate crisis. While litigation is not a panacea, it remains an important accountability mechanism in the BHR field.
The selected case studies illustrate how strategic BHR litigation can shape legal narratives, raise awareness and open new pathways for remedial recourse. In Josiya, Dyson and Milieudefensie, courts did not simply apply existing law. Rather, they were asked to interpret evolving social expectations and to assess whether corporate conduct met emerging standards of care. In doing so, these cases have helped solidify the notion that corporate responsibility to respect human rights can carry legal implications, even in the absence of statutory duties. They have also expanded the evidentiary foundations for future litigation and provided reference points for practitioners, CSOs and scholars alike.
These judicial developments are directly relevant to the article’s guiding research question: how – and to what extent – do specific cases shape the scope and content of corporate responsibility? The analysis shows that strategic litigation contributes not only to legal precedent but also to broader normative shifts. It fosters a slow, iterative process of translating soft standards such as the UNGPs into enforceable duties under domestic law. This dynamic is particularly evident in the way tort law has been used to frame harms as breaches of a duty of care in light of changing societal expectations. It also reflects one of the positive impacts identified in the Birchall, Deva and Nolan framework: the ability of BHR litigation to shape laws and policies by clarifying standards of corporate accountability.Footnote 127
The title of this article suggests that BHR litigation is a marathon, not a sprint, which is a fitting metaphor for the field itself. Strategic litigation must be viewed through a long lens: its impact may go beyond a single judgment and result in the continuing influence of legal reasoning, judicial engagement and the momentum it generates. Despite jurisdictional limits or partial outcomes, these cases have helped reshape the legal imagination around what corporate responsibility to respect human rights entails. They show that the law can respond to calls for accountability, and that the path toward binding duties is being laid one case at a time. For now, the author chooses to focus on the ‘shafts of sunlight’ and the incremental, but undeniable, judicialization of corporate responsibility to respect human rights.
Acknowledgements
Preliminary drafts of this article were presented at seminars hosted by the University of Tasmania, RMIT University and the Bonavero Institute of Human Rights. The author is thankful to the organisers and participants for their valuable feedback. Further comments from an anonymous peer reviewer and Surya Deva were especially helpful in refining the final argument.
Financial support
The author gratefully acknowledges financial support from the Leverhulme Trust under Research Project Grant ECF-2021-132.
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