Human rights invoked by Dutch Court of Appeal in ordering the Netherlands to take action on climate change

Last week, the Court of Appeal in the Netherlands ordered that the Dutch government must take steps to cut its greenhouse gas emissions by 25% by 2020. Its decision relied heavily on Article 2 (the right to life) and Article 8 (the right to private and family life) of the European Convention on Human Rights in concluding that the state’s failure to pursue a more ambitious reductions target was unlawful.

In 2015, the Urgenda (or “Urgent Agenda”) Foundation, along with 886 citizen co-litigants, issued proceedings against the Dutch government, alleging it had knowingly contributing to a breach of international targets for global warming. Urgenda applied for an order requiring the cumulative volume of greenhouse gases emitted in the Netherlands to be reduced by at least 25% by the end of 2020, relative to 1990 levels. This was granted by the District Court, but the state appealed the decision.

Before the Court of Appeal in the Hague, Urgenda argued that the state was doing too little to limit greenhouse gas emissions and that it was shirking its responsibility under the Paris Agreement – particularly in resiling from its own 2011 commitment to cut emissions by 30% by 2020 in favour of the EU-wide 20% target. Therefore, given the severity of the impact of climate change, the state had violated its positive duty to protect its citizens arising under Articles 2 and 8 of the European Convention of Human Rights (ECHR).

The court found that Urgenda’s case was admissible and that the relevant ECHR rights are directly effective as a matter of Dutch law. Assessing the evidence on global warming’s impacts, the court concluded that climate change was sufficiently dangerous and severe to impose on the Dutch state a positive obligation (akin to a duty of care) under Articles 2 and 8 ECHR.

The court rejected the state’s argument that Dutch emissions were minor in absolute terms and it was incapable of solving the problem on its own; these arguments did not release the state from its obligation to take measures in its own territory. It also rejected submissions that the state’s approach was a political matter in which the court could not interfere, ruling that although the state has a wide margin of appreciation in choosing its approach to combatting climate change, there is nonetheless a justiciable obligation to take action in response to such a real and imminent threat.

The court therefore concluded that the state’s failure to pursue a more ambitious strategy to control greenhouse gas emissions was a breach of its duties under Articles 2 and 8 ECHR, and ordered that the state must reduce emissions by at least 25% by the end of 2020. 

The court's judgment is available in English here. It remains to be seen whether the Dutch state will appeal the decision to the country’s Supreme Court.

The case exemplifies what some commentators have termed the “greening” of human rights, whereby (in particular) the rights to life and to private and family life are deployed in pursuit of environmental goals. Indeed, for a national court decision on state policy, the judgment is striking in its explicit reference to the relevance of these rights in “environment-related situations” and willingness to scrutinise the state’s margin of appreciation – which would often limit any judicial interference in this context – accordingly. As a forthcoming Freshfields blog will explore, this is an increasing feature of environmental claims brought against not only governments but also businesses, and is assuming growing importance in business and human rights discourse.