A Timely Intervention: Dutch Court declares that the State has Positive Duties under the European Convention on Human Rights to tackle Climate Change
Jamie McLoughlin 23rd October 2018

The Court of Appeal in the Netherlands has just issued a landmark judgment concerning environmental human rights and climate change. It has found the Dutch State to be in breach of its positive obligations under Articles 2 and 8 of the ECHR by failing to adopt a more ambitious plan to reduce greenhouse gas emissions. The judgment could not have at come at a more auspicious time given the stark warning issued recently by the UN Intergovernmental Panel on Climate Change (IPCC), that the world only has twelve years to bring climate change under control before catastrophe strikes. 

This case arose when Urgenda– a citizens’ platform, campaigning for a more sustainable society – formed the view that the Dutch State’s emissions reduction target of between 14-17% by 2020 was insufficient and sought a court order compelling the state to cut emissions by at least 25%. The District Court granted the order sought, but the Dutch Ministry of Infrastructure and the Environment in response lodged an appeal, arguing, inter alia, that policy questions such as this were beyond the competence of courts.

However, the Court of Appeal determined that greenhouse gas emissions and the consequences associated with climate change, could adversely affect the current generation, especially young people, and therefore issues of concern existed under Article 2 (the right to life) and Article 8 (the right to respect for private and family life) of the ECHR. In line with the jurisprudence of the European Court of Human Rights, the Dutch Court reiterated that Articles 2 and 8 impose positive as well as negative obligations on the State to take concrete action to safeguard those within its jurisdiction against threats to life which are real and imminent, and to protect home and family life against infringements, including from industrial activity, that reach a certain level of severity. In light of this and having considered the evidence regarding the damage that would be caused to the planet if global temperatures rise by 2°C relative to pre-industrial levels, in a significant step, the Court concluded that climate change constitutes a real threat, carrying with it a serious risk of loss of life. As such, the Court held that the State’s ‘duty of care’ was engaged by climate change, that its actions to date in that regard were insufficient, and that it would be unlawful for the State to fail to reduce greenhouse gas emissions by at least 25% by 2020, based on the IPCC AR4 report that such a reduction is necessary to prevent a global temperature rise of 2°C.

This decision is hugely significant on a number of fronts. First of all, on a fundamental level, it views climate change as a potential human rights violation, and it recognises the reality that a healthy, sustainable environment is a pre-requisite to the enjoyment of all other rights, i.e. environmental rights are part of an indivisible and interdependent framework of human rights. As the former UN Special Rapporteur on Human Rights and the Environment put it, this is ‘the most important judicial decision yet on the application of human rights law to climate change.’ Consequently, it could contribute to building a human rights-based response to the challenges posed by the need to combat climate change.

Second, this decision could prove to be a source of inspiration for courts and environmental activists far beyond the Netherlands. It will be of particular relevance to litigants in the other forty-six-member states of the ECHR, some of whom have very poor records when it comes to efforts to address climate change. Perhaps even more importantly, this decision could be a catalyst for the European Court of Human Rights itself to move beyond its current somewhat cautious approach to environmental rights under Article 8 of the Convention, and to apply the full rigours of the positive duty to safeguard the right to life under Article 2 to environmental issues such as climate change.

Third, the use of the right to life as an anchor for environmental rights is an idea that could have application beyond just the ECHR, as the right to life is ubiquitous in constitutions and human rights documents the world over.

In Conclusion, this decision of the Dutch Court of Appeal is timely, as the planet and life as we know it, are facing an existential threat in the form of anthropogenic climate change. Justiciable environmental rights may hold the key to turning political rhetoric on climate change into meaningful action.

Author profile

Jamie McLoughlin graduated from the Oxford BCL with distinction in 2018. He also holds an undergraduate (1st class) BCL degree from University College Dublin and is currently planning to undertake a PhD focusing on the intersection between Irish constitutional law and international human rights law.

Citations

Jamie McLoughlin, “A Timely Intervention: Dutch Court declares that the State has Positive Duties under the European Convention on Human Rights to tackle Climate Change” (OxHRH Blog,23 October 2018), <http://ohrh.law.ox.ac.uk-a-timely-intervention:-dutch-court-declares-that-the-state-has-positive-duties-under-the-european-convention-on-human-rights-to-tackle-climate-change> [date of access].

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