Human rights as a means of fighting climate change

On 20 December 2019, the Dutch Supreme Court issued a landmark judgement upholding the Court of Appeal’s decision in the Urgenda Foundation v. Netherlands case. The class action initiated by 900 Dutch citizens had as a core question whether the State had a duty of care to protect its citizens against the imminent danger caused by climate change. By compelling the State to reduce greenhouse gas emissions by at least 25% compared to 1990 by the end of 2020, the Supreme Court answered the question positively.

The judges found under human rights law, and more specifically, the European Convention on Human Rights (ECHR), the grounds to determine the nature and extent of the Netherlands’ legal obligations regarding climate change. 

The rights to life and family endangered by greenhouse gas emissions

In interpreting Article 2 on the right to life and Article 8 on the right to private and family life, the Dutch judges found that the State had a positive obligation to reduce greenhouse gas emissions.

In fact, the European Court on Human Rights (ECtHR) has affirmed on several occasions that, when the State is  aware of a real and immediate risk for individuals’ lives (Oneryildiz v Turkey, §101), Article 2 entails the obligation to provide effective deterrence against threats to the right to life in the context of any activity, whether public or private (Budayeva and Others v. Russia, §129-130).

It is important to note, as it is particularly relevant in the context of climate change whose consequences may not appear in a short term, that the notion of immediacy is not to be understood as referring to a specific period of time, but rather to the direct link existing between the risk and the individuals’ right to life (Oneryildiz v Turkey, §100). 

Furthermore, under Article 8, the ECtHR has stated the obligation to take measures when there is a risk of “severe environmental pollution that may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health” (Taskin and Others v Turkey, §113).

The Supreme Court views the consequences of climate change as falling under the scope of Article 2 and 8 inasmuch as they constitute a real threat for the residents of the Netherlands, who will be confronted with loss of life or disruption of family life for instance in case of a sharp rise in sea level.

According to the judges, the global nature of the threat does not prevent from imposing an obligation on the Netherlands. Indeed, partial responsibility causing climate change cannot be accepted as a defence. The State cannot argue neither that it does not have to take responsibility because others do not comply with their own, nor that the State’s own share of global emissions is very small and that its efforts make little difference on a global scale.

Hence, the Supreme Court considers that Article 2 and 8 must be interpreted as compelling the State to do “its own” in order to safeguard the rights of its residents, by mitigating the consequences of climate change, i.e. reducing greenhouse gas emissions.

An incentive to take actions on climate change?

While several cases against States are being brought to court in Europe, notably in Belgium and in France by citizens calling their governments to take adequate measures to minimize climate change, the decision of the Dutch Supreme Court, and more precisely its application of the European Convention on Human Rights may play an important role in the on-going proceedings.

This decision may be an incentive to all members of the Council of Europe to take effective measures to mitigate climate change, if they do not want to be sued by their citizens and potentially be ordered by their national courts to act, and eventually to pay penalties. Unless the incentive lies in the risk of having the ECtHR itself ruling on the issue of climate change.