Academic journal article McGill Journal of Sustainable Development Law

Urgenda V. the State of the Netherlands: The "Reflex Effect" - Climate Change, Human Rights, and the Expanding Definitions of the Duty of Care

Academic journal article McGill Journal of Sustainable Development Law

Urgenda V. the State of the Netherlands: The "Reflex Effect" - Climate Change, Human Rights, and the Expanding Definitions of the Duty of Care

Article excerpt

1.  INTRODUCTION: THE CONFLUENCE OF HUMAN RIGHTS LAW AND     CLIMATE CHANGE                                            305 2.  BACKGROUND: THE FACTUAL AND LEGAL BASIS OF URGENDA'S     CLAIMS                                                    308 3.  OVERVIEW OF THE DECISION: A GOVERNMENT'S DUTY OF CARE     TO MITIGATE CLIMATE CHANGE                                310 4.  THE REFLEX EFFECT: CONSTITUTIONAL AND INTERNATIONAL     NORMS REFLECTED IN THE DUTY OF CARE                       311     4.1. ARTICLE 21 OF THE DUTCH CONSTITUTION AND     INTERNATIONAL CONVENTIONS                                 311     4.2. THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND     VIOLATION OF A PERSONAL RIGHT                             313     4.3. THE COURT'S CONCLUSION ON THE DUTY OF CARE           314 5.  DUTCH LAW: THE DUTY OF CARE AND JUSTICIABILITY            314     5.1. DUTCH LAW AND THE DUTY OF CARE                       314     5.2. JUSTICIABILITY OF THE CLAIMS                         316 6.  THE HUMAN RIGHTS CONTEXT FOR CLIMATE CHANGE POLICY     AND LITIGATION                                            317 7.  THE OSLO PRINCIPLES AND ENTERPRISE LIABILITY: NEW     AVENUES                                                   320 8.  CONCLUSION: URGENDA AND PROSPECTS FOR FUTURE     CLIMATE CHANGE LITIGATION                                 323 

1. INTRODUCTION: THE CONFLUENCE OF HUMAN RIGHTS LAW AND CLIMATE CHANGE

The Urgenda Foundation v The State of the Netherlands ruling, (1) decided at the District Court of the Hague in June 2015, marked the first time any court in the world ordered its own government to strengthen its response to the climate change crisis. The decision has a dual significance in the development of the law of climate change. Until the Urgenda decision, no court had held a government responsible for its national contribution to global greenhouse gas emissions originating from its territory or for its failure to aggressively mitigate these emissions, nor had any court given human rights norms a central role in defining the greenhouse gas emission standards that government must uphold. At the same time, the court gave an expansive reading to the duty of care under Dutch law, by viewing this duty in the context of international and constitutional obligations.

In Urgenda, the judiciary broke new ground by requiring the other governmental branches to take stronger action to immediately reduce greenhouse gas emissions. (2) The Urgenda Foundation--a citizens' platform in the Netherlands representing itself and 886 individual members from various sectors committed to preventing catastrophic climate change--was successful in a claim that the State of the Netherlands (the State) had improperly weakened the national commitment to reduce greenhouse gas emissions from its initial pledge of a 25-40 percent reduction by the year 2020 below 1990 levels, to 20 percent. (3)

The Urgenda decision was based on the court's interpretation of the domestic Dutch legal definition of the State's duty of care toward its citizens. Thus, the case was decided in the context of tort law or, as it is put in the continent of Europe, in a private law context. However, the court expanded that duty by interpreting it in the context of human rights and constitutional principles--an expansion it termed "the reflex effect." (4) The court concluded that international law obligations "have a "reflex effect" in national law." (5) The State of the Netherlands filed an appeal at The Hague Court of Appeal; the appeal is pending.

Since the Dutch court's ruling, other courts have taken similar approaches and have reached comparable conclusions. These included a court in Pakistan, (6) and a United States District Court, (7) among others, and has generated significant commentary. (8) Although the ruling is pending appeal, it has already shifted the ground for climate change litigation in other jurisdictions by establishing that a government's domestic obligations of care, interpreted in a human rights context, can extend to the protection of the planets climate. …

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