Imogen Edge-Partington assesses the significance of the Dutch Supreme Court’s decision to uphold the historic ruling in Urgenda v the Netherlands.
The Dutch Supreme Court has ruled that protection from the devastating effects of climate change is a human right which government must uphold as a duty to their citizens. The case was brought initially to the District Court of The Hague in 2015, reaffirmed by the Court of Appeal last October, and has now been upheld by the highest court in the Netherlands.
Dennis van Berkel acted as legal counsel for the non-profit Urgenda Foundation, the environmental group which brought the case along with over 900 co-plaintiffs. He described the notable impact of the judges’ ruling on governments’ obligations laid out by the European Convention of Human Rights – particularly Articles 2 and 8 which involve the right to life and the right to a private and family life.
“It’s not just the final decision but the way the judges argued their reasoning,” van Berkel said. “The court was very clear. Human rights protect people against the impacts of climate change and the government and parliament have to respect those human rights when defining their policies. That’s why this is a case for the courts to decide, because the dangers of climate change are so massive that they are human rights issues.”1
The consequence of the decision in the Dutch Supreme Court will in practise be quite radical for the Netherlands. The result of the judgment is that the Dutch government has been ordered to cut its greenhouse gas emissions by 25% by the end of 2020. Michael Gerrard, Director of the Sabin Center for Climate Change Law at Columbia University, emphasised the ground-breaking nature of the decision. “There have been 1442 climate lawsuits around the world,” he said. “This is the strongest decision ever. The Dutch Supreme Court upheld the first court order anywhere directing a country to slash its greenhouse gas emissions.”2
The Dutch government has been ordered by the courts to also consider the latest climate science when drawing up any policies which might impact the environment. A specific and key piece of climate science that the Dutch government must pay heed to was referred to in the judgment – the Intergovernmental Panel on Climate Change (IPCC) stated in their ‘Global Warming of 1.5°C’ Special Report of October 2018 that there must be a cap of 1.5°C rising above pre-industrial levels in global temperature –any higher and devastating and irreparable damage would be done to the planet.3
A central element of the response made by the Dutch Supreme Court in their judgment was that human rights as they are could not be ensured, protected and sustained without the recipients of those rights being in a safe and habitable environment.4 Carroll Muffett, president of the Center for International Environmental Law (CIEL) commented, “the court interpreted the European Convention of Human Rights but what it was basically interpreting was the right to life, property and livelihood. And the court found implicitly in those the right to a liveable environment and a climate that can sustain life.”
It is hoped by environmental campaigners that this case will have an positive knock-on effect for other legal cases being brought which concern environmental damage done by climate change.
In April 2019, a group of social and environmental justice groups led by Friends of the Earth Netherlands began to put together a case against the oil and gas company Shell. Their main argument was that Shell’s business model threatens international climate goals and endangers human rights. In October, Shell’s CEO responded that the corporation had ‘no choice’ but to invest in oil and that it was ‘entirely legitimate’5 for them to do so. In a formal reply a month later, Shell denied all liability. The recent decision in the Supreme Court of the Netherlands however, sets a significant precedent on similar legal grounds to the human rights arguments made by Friends of the Earth and other campaigners in similar cases. Nine de Pater, a climate campaigner at Friends of the Earth Netherlands, commented that the case is “a huge decision for all current climate litigation cases.”
Furthermore, the relationship between human rights and climate change espoused in this case, as argued by van Berfel, is ‘not unique to the Netherlands.” Mr van Berkel continued, “We think and expect that other lawyers and courts will be looking at this judgment for inspiration about how to deal with this issue.” In the case itself, Justice Streefkerk of The Hague contended that the the claim that a cut in emissions in the Netherlands would not have a big effect on a global level did not excuse a country from taking measures to reduce its own emissions. “Every country is responsible for its share,” he said. 6
This is hugely relevant, because one of the most common arguments against cutting emissions in America and Europe is that it is not worth doing if countries such as China and India don’t do their share too. This case sets a precedent which effectively argues the opposite – that each government should do their bit and accept that they are accountable to their citizens. From Colombia to Canada to Pakistan to New Zealand, climate change cases are being brought against national governments, including a case against the EU Parliament and Council brought by ten families from Portugal, Germany, France, Italy, Romania, Kenya, Fiji, and Sweden, which argues that EU climate targets are not ambitious enough.7
As the global climate crisis grows more critical, the intensity with which citizens are likely to require their governments to act is surging. This should be at the forefront of consideration for governments when legislating.
Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.
3 IPCC, 2018: Global warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty [V. Masson-Delmotte, P. Zhai, H. O. Pörtner, D. Roberts, J. Skea, P.R. Shukla, A. Pirani, W. Moufouma-Okia, C. Péan, R. Pidcock, S. Connors, J. B. R. Matthews, Y. Chen, X. Zhou, M. I. Gomis, E. Lonnoy, T. Maycock, M. Tignor, T. Waterfield (eds.)]. In Press.
4 The State of the Netherlands v Urgenda Foundation,  Hoge Raad der Nederlanden, Gerechtshof Den Haag, 67.
6 The State of the Netherlands v Urgenda Foundation,  Hoge Raad der Nederlanden, Gerechtshof Den Haag, 63.