(This article has been originally published here)
Governments must no longer depend on or wait for global policies to act upon climate change. They have a legal duty of care to protect the citizens and international human rights
The Hague District Court, in a recent historic landmark decision, decided that the Dutch government is knowingly putting its current and future generations at risk of climate change, breaching its duty of care to protect its citizens. The court decided that this was a violation of human rights.
Spearheaded by the Amsterdam-based environmental non-profit The Urgenda Foundation, along with 886 Dutch citizens, the lawsuit charged the Dutch government with breaching its duty of care by not taking sufficient measures to adequately reduce their greenhouse gas (GHG) emissions.
The lawsuit called for the court to declare that global warming of more than 2 degrees Celsius would lead to the violation of fundamental human rights and to declare that the Dutch government was acting unlawfully by not doing its share to prevent climate change.
The court decided that the Dutch government’s current emissions reduction target of 17 per cent by 2020 was insufficient and ordered it to increase this to at least 25 per cent below 1990 levels. This would put the target in the region of the 25-40 per cent reduction required from developed countries by climate science and international climate policy.
The duty of care as a legal principle
Duty of care arises when there is an obligation upon one party (such as a government) to take proper care of another party (such as its citizens) to avoid causing any unreasonable harm or loss. According to Tort Law, if such a duty is found to be breached, the court can impose a legal liability of negligence.
Courts look at the relationship between the two parties, at whether the harm could have been reasonably foreseen, and at whether it is reasonable to impose a duty of care.
In the Urgenda case, the court decided that the Dutch government had a duty of care to protect and improve the living environment of its people as the government is responsible for effectively controlling their emission levels. So the government must do more to avert the imminent danger caused by climate change.
One of the most interesting aspects of the ruling was that the government was told it cannot wait for a global agreement or hide behind the argument that a solution to the global climate problem does not depend solely on Dutch efforts. The court argued that any reduction in emissions contributes to the prevention of dangerous global climate change and that, as a developed country, the Netherlands is obliged to take the lead in preventive action.
A landmark decision
The decision sets a historical landmark. It is the first ruling where a court has ordered a national government to strengthen its emissions reduction targets based on its duty of care to its people and determined the appropriate minimum target.
It is also the first such case in Europe in which citizens have succeeded in holding a government responsible for its lack of action on climate change, and the first in the world in which international human rights laws have been used as a legal basis to protect citizens against climate change.
Increasing court cases
The Dutch court ruling made the point that the government could not use failings or delay of international negotiations as an excuse to avoid national-level action on climate change.
Coming at a critical point in the international climate policy making process, this is important. This ruling could mean that even if there is a weak outcome at the Paris climate negotiations in Paris (COP21) in December, national governments could still face legal action.
In fact, there is a growing portfolio of public law suits seeking a judicial intervention when a country’s executive and legislature has failed them on climate policies. Some examples include:
- In Belgium, more than 10,000 people are supporting a potential climate lawsuit against the government. Island communities including Vanuatu, Kiribati, Tuvalu, Fiji and the Solomon Islands are considering similar legal actions as shown by the ‘people’s declaration for climate justice‘
- A group of Philippine citizens are preparing a petition to request the Philippine Human Rights Commission to investigate the responsibility of oil, coal and gas investing companies for their role in human rights violations resulting from climate change, and
- A Peruvian farmer has initiated legal action against the German energy company RWE, Europe’s single largest emitter of GHGs, for its contribution to climate change and demanded compensation for damage caused to his property and the village by glacial lake outburst floods.
A way to ensure climate action?
Climate change is real and people suffer its effects in their daily lives. It seems a simple logic to say that those who have a legal duty of care to protect those who suffer from climate change impacts must take the necessary actions. However, despite a growing body of scientific findings showing increasing climate impacts and despite global agreement on the need to act, governments have not been compelled to take the degree of action required.
COP21 in Paris may result in a dynamic and durable international agreement that may direct governments towards a climate neutral future, but in the meantime the public are exploring other options to push for stronger action.
While relatively untapped so far, there seems to be considerable potential for judicial decisions to drive government and industry action.
I hope this decision will also encourage governments to be more serious in preparing their nationally determined contributions for the post-2020 period; and that it will encourage the private sector to be more mindful of the impacts of current and future investments in the carbon intense industries.
Written by: Dr. Achala Abeysinghe, Principal researcher and team leader of the global climate law, policy and governance team in IIED’s Climate Change Group.