The landmark judgement of the Dutch Supreme Court in Urgenda Foundation v State of the Netherlands has inspired climate cases across the globe, where litigants argue that States are required to reduce their emissions based on their respective human rights obligations. With many cases still pending, Urgenda provides important pointers for some of the interpretative challenges that litigants and courts have to grapple with in these cases. This post focuses on one of those challenges: what, from a human rights perspective, amounts to ‘dangerous’ climate change?
The term ‘dangerous’ creates an interpretative challenge in climate litigation as it appears in Article 2 of the UN Framework Convention on Climate Change (UNFCCC), which sets an ultimate objective of ‘preventing dangerous anthropogenic interference with the Earth’s climate system’ while leaving the term undefined. Some States suggested that achieving the long-term temperature goal of the Paris Agreement would be sufficient to protect against dangerous climate change. Most climate vulnerable States objected, pointing to the devastating consequences of climate change they already suffer at current levels of warming as a result of decades of global inaction. As a result, the precise meaning of Article 2 UNFCCC remains unclear.
In Urgenda, the Supreme Court’s reasoning suggests that dangerous climate change will likely only occur beyond a 1.5°C or 2°C global temperature rise. It even goes as far as referring to warming of up to 1.5°C as ‘safe’. This assumption is problematic from a human rights perspective, as it stands in stark contrast with the experience of those whose rights are already being violated as a result of climate impacts such as rising sea levels, floods, heatwaves, droughts and desertification. Notably absent from the judgement is any reference to the unprecedented climate change impacts already being experienced in the Dutch Caribbean, such as the deadly hurricane Irma.
The situation of the Dutch Caribbean was never raised in proceedings, making it difficult for the Supreme Court to establish violations of the rights of these inhabitants. Nonetheless, the Supreme Court could have taken these rights into account in the interpretation of Article 2 of the UNFCCC. Doing so proprio motu would have been in line with the broader purpose of cassation, which extends beyond dispute resolution to include safeguarding the development of the law in a manner that is consistent with the ECHR.
Urgenda initially pursued the claim on behalf of individuals and future generations on Dutch territory as well as outside the Netherlands. The District Court upheld this claim, recalling the potentially existential threat to Small Island States. However, it seems to have disregarded this fact in its analysis of the Netherlands’ mitigation obligations. The Court of Appeal took an even narrower approach by declining to engage with the extraterritorial or intergenerational aspects of the claim. This was largely a result of judicial economy: the claim was admissible on behalf of the current generation of Dutch nationals, so dealing with the broader claim concerning other categories of actual or potential rightsholders was deemed unnecessary. Neither of the parties challenged this approach in cassation. Accordingly the Supreme Court, like the Court of Appeal, confined its human rights analysis to the future threat of climate change for residents of the Netherlands.
An exclusive focus on residents is too narrow when a Court is interpreting a treaty that provides a framework for climate action based on a globally agreed objective. This ultimately results in an aggravation of injustice, with the lowest standards of action imposed on States that are least vulnerable to the impacts of climate change due to their geographical circumstances and greater capacities to respond to these impacts (which, in turn, are partly the product of centuries of emission-producing activities). Conversely, it poses the greatest burden of action on the most vulnerable States which tend to be the least responsible for causing climate change. This interpretation contradicts the principle of common but differentiated responsibilities and respective capabilities (CBDRRC), including the Supreme Court’s own finding that the principle implies that States’ mitigation obligations are proportionate to its share of the responsibility for causing climate change.
The Supreme Court’s failure to recognise the extent to which climate change has already dangerous proportions both within and outside the Netherlands highlights the risks associated with climate litigation before a court located in a site of privilege, which clearly perceives the hazardous consequences of climate change as remote. The resulting interpretation of Article 2 of the UNFCCC reflects this blind spot, and future climate litigation should take care not to replicate it in pleadings and judicial reasoning.
This post forms part of the Litigating for Climate Justice: Views from the Frontlines blog series.