OTTO SPIJKERS

On 24 June 2015, the District Court in the city of The Hague (Netherlands) concluded that the State of the Netherlands had not done enough to reduce greenhousegas emissions to acceptable levels. This decision came as a big surprise at the time, because the Court normally does not meddle in policy-making of the Government. The so-called “Urgenda judgment”, named after the Urgenda association that initiated the case, has led to an unprecedented amount of scholarly comments, from all parts of the globe (see also my lecture on this decision given at the II Foro Internacional Justicia Ambiental de Santiago). In this post, a summary of the decision is provided, followed by a focus on the human rights related aspects, and a conclusion and look into the future.

Summary of the decision

Urgenda, an association established under Dutch law, persuaded a Dutch Civil Court to rule that, in order not to contribute to dangerous climate change, the Dutch State had to reduce greenhouse gas emissions in and from the Netherlands by at the very least 25% in 2020 when compared with the levels in 1990. If the State would not do its utmost to achieve such drastic reduction, it would be in breach of its duty of care.

Urgenda directly invoked certain provisions of international law, and argued that the Netherlands had breached those. These provisions included certain articles in the Climate Change Convention and its Kyoto Protocol, as well as the no harm principle of customary international environmental law, and Article 191 of the Treaty on the Functioning of the European Union. The latter proclaims that:

Union policy on the environment shall contribute to pursuit of [inter alia] promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.

The Dutch Court held that this provision, and the other international provisions referred to, were not suitable to be invoked directly by an association against the State before a Dutch court, because they were not sufficiently precise. These norms could, however, be used to flesh out and give concrete meaning to the duty of care, as it exists in Dutch domestic civil law. Articles 2 and 8 of the European Convention on Human Rights (ECHR), which could not be invoked directly because Urgenda was not itself a victim of a breach of these provisions – more on this below ‒ served a similar function.

Acting careless – breaching the duty of care – is basically a tort, a wrongful act under Dutch civil law. To assess whether the State had acted careless in not doing enough to prevent further climate change, the Court looked at:

The nature and extent of the damage ensuing from climate change;

• The knowledge and foreseeability of this damage;
• The chance that hazardous climate change will occur;
• The nature of the acts (or omissions) of the State;
• The onerousness of taking precautionary measures;
• Andthe discretion of the State to execute its public duties.

To hold the State liable for a breach of the duty of care, the act or omission must be attributable to the State, and it must be shown that the acts or omissions complained of have caused, or are likely to cause, damage to the claimant, i.e. Urgenda. It must also be proved that there is a causal link between the act/omission of the State and the damage sustained by Urgenda. And, finally, it must be shown that the norm breached – duty of care ‒ exists for the protection of the interests of Urgenda.

There were thus quite some legal hurdles to jump over, but Urgenda managed to successfully jump all of them and get the ruling it was looking for: as requested, the District Court ruled that the Dutch State must do more to reduce greenhouse gas emissions originating from the Netherlands.

Human rights aspects of the decision

In the remainder of this brief post, I want to focus on the human rights aspects of the Court’s decision. As mentioned just above, Urgenda invoked inter alia Articles 2 and 8 ECHR. Article 2 says that “no one shall be deprived of his life intentionally”, and Article 8 says that “everyone has the right to respect for his private and family life”. Contrary to most of the international provisions of an environmental law character that Urgenda invoked, these human rights provisions are sufficiently precise and thus suited to be invoked directly by a private person against the State before the domestic courts. But this time, there was a different problem. Article 34 of the European Convention states that

The [ECHR] may receive applications from any person, nongovernmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention.

The Court derived from the latter provision, and the case law of the European Court of Human Rights, that an association can only bring a claim when it is itself the victim of a breach. That means, in casu, that Urgenda’s own physical integrity must be violated, or its own privacy interfered with, which was not the case. In other words, Urgenda was not itself a victim, and the ECHR system does not recognize a right of an association to object to government decisions when the association has no particular interest in the case. Once again, the conclusion was that Urgenda could not directly invoke these provisions. But they could “serve as a source of interpretation” for the Court when applying provisions of domestic law, such as the duty of care.

Together with Urgenda, 800 individuals also presented themselves as claimants. The question was whether they could invoke the abovementioned human rights provisions. Could they be considered direct victims? In the end, the Court concluded that the issue of standing of the individuals could be left unanswered, because the individual claimants did not have “sufficient (own) interests besides Urgenda’s interest”. In other words, Urgenda had won the case, so what would it add if the individuals also won? It is unfortunate that the Court so easily avoided the issue of standing of these individual victims. After all, it would have been interesting to hear from the Court whether one can be a victim of a damage that is likely to occur sometime in the future. Indeed, the European Court has already accepted claims from potential victims in the case of Klass and others v. Germany, and the case of Soering v. the United Kingdom. By addressing the issue of standing of these individuals, the Court could have further developed this line of thought.

It is true that the Court held that the human rights provisions could be taken into account when applying the duty of care, but nowhere in the judgment did the Court directly address the question as to whether the State had committed a breach of an (inter)national human rights obligation. This is unfortunate, as many interesting issues could have been clarified. The Court could, for example, have said something on the strategy, employed more and more frequently, of approaching the protection of the environment as a human rights issue. Many of the claims are couched in human rights language, in the sense that individual people claim a right to enjoy a healthy environment. Not only local domestic civil courts can be used to bring such claims, but regional human rights courts as well, such as the European Court of Human Rights. This option is appealing, because there is at present no international forum where one can submit claims relating to international environmental law and the protection of the environment. Hence the appeal to translating such claims into human rights issues.

Conclusion

The Urgenda judgment is a landmark case on the relationship between human rights and climate change, because it shows that a national association can make use of provisions of international (human rights) law to induce a local Court to order a State to adapt its policy to more rigorously combat climate change. It is true that these international (human rights) law provisions could not be invoked directly by Urgenda against the Dutch State, but the claimant found a clever way out: to use these international provisions to give substance to a duty of care upon the State in relating to combating climate change. This story is far from over. The State of the Netherlands has appealed the judgment.

—

Meet the author

Otto Spijkers is Lecturer of Public International Law at Utrecht University, and researcher at the Utrecht Centre for Water, Oceans and Sustainability Law. He is a member of the Committee on the Role of International Law in Sustainable Natural Resource Management for Development of the International Law Association, and was a visiting lecturer inter aliaat Xiamen University’s China International Water Law Programme (China), and the China Institute for Boundary and Ocean Studies of Wuhan University (China).